Ground 2
47 In respect of ground 2, the applicant contends that the Minister fell into jurisdictional error by making a critical finding, based on no evidence, that Ireland has comparable standards of healthcare, social and economic support, and that the applicant "would be entitled to the same level of services as other citizens of Ireland in a similar position".
48 Counsel for the Minister quite correctly, and consistent with the Minister's obligations as a model litigant, drew attention to a letter given in support of the applicant by one of his friends in which it was stated that if he is returned to Ireland the applicant "will not receive the Irish pension due to not working over there for long enough". That is the closest that the applicant made a case in his submissions to the Minister that he would not receive social support, or adequate social support, in Ireland.
49 Ground 2 arises in relation to paragraphs [18] and [19] of the Minister's reasons which are quoted at [21] above. In particular, it is this statement by the Minister that is said to not be supported by any evidence:
…, as Ireland is linguistically and culturally similar to Australia, and has comparable standards of healthcare, social and economic support, I consider that [the applicant] would be entitled to the same level of services as other citizens of Ireland in a similar position.
50 Read literally, the statement makes no sense because the second part of the statement which is said to flow from the first cannot logically flow from the first. That is to say, the fact (if it be a fact) that Ireland is linguistically and culturally similar to Australia and has comparable standards of healthcare and social and economic support does not support the conclusion in the second part of the statement that the applicant would be entitled to the same level of services as other citizens of Ireland in a similar position. Further, there is no indication of what is meant by "a similar position". Does that refer to an unemployed 69-year-old, or an unemployed 69-year-old who has lived the last 50 years of his life in another country and not contributed to Irish social security, or some other combination of characteristics?
51 Read fairly, what the sentence can only be intended to convey is (1) that Ireland has comparable standards of healthcare and social and economic support as Australia, and (2) that the applicant will have the benefit of those services and support if returned to Ireland. It is only that reading of the statement which could support the Minister's conclusion in the next paragraph that the applicant "would be able to settle in his home country without undue practical impediments."
52 There was no evidence in the documents that served before the Minister to support either the finding in relation to comparable services or that the applicant would enjoy those services in Ireland. Indeed, in respect of the latter, as the Minister's counsel rightly acknowledged, there was a statement in a letter submitted in support of the applicant that the applicant will not receive a pension in Ireland because he has not worked there "for long enough". Whether or not that is correct as a matter of Irish law or practical reality was not canvassed in any of the documents before the Minister, with the result that the letter is the only "evidence" that was apparently available to the Minister on the subject. Certainly, given that the applicant has not lived in Ireland for some 50 years, it does not appear to be beyond the realm of reasonable possibility that the applicant will not receive a pension if he is returned to Ireland. Further, since he is in poor health and 69 years of age, and the Minister found that he will not be able to find work if he is returned to Ireland, whether or not he will receive a pension there is necessarily an important if not critical consideration in the assessment of what impediments he will face if he is returned to Ireland.
53 It was also part of the applicant's submissions to the Minister that he would be rendered homeless if he was returned to Ireland where he would have "no home, no friends and no support", as opposed to if he remained in Australia where he and a lifelong friend would establish a home together in a rural setting. The Minister's findings with regard to comparable health care and social and economic support in Ireland are directly relevant to these submissions.
54 The Minister's submission that the finding in relation to the social benefits that the applicant would receive in Ireland was not a substantial aspect of the Minister's reasons and was not critical to his ultimate conclusion must be rejected. As identified above, there were three principal considerations to the Minister's ultimate conclusion that there is no "other reason" to revoke the cancellation of the applicant's visa. They were the extent of the impediments that would be faced by the applicant if he was removed to Ireland (no "undue practical impediments" although "some emotional hardship"), the strength, nature and duration of the applicant's ties in Australia (45 years of positive contribution, little weight on family ties but several supporting friends who "may experience some emotional hardship") and the protection of the Australian community (a low risk of reoffending which in respect of this type of offending is "not acceptable").
55 In the concluding part of the Minister's reasons, each of those considerations was taken into account and ultimately it was concluded that the applicant represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighs the other considerations which include "his lengthy residence and employment, and the hardship [he] and his social networks will endure in the event the original decision is not revoked".
56 Understood in that way, the conclusion with regard to there being no "undue practical impediments" to the applicant returning to and living in Ireland was undoubtedly a central tenant of the Minister's reasoning.
57 On behalf of the Minister, it was submitted that Parliament envisaged that the Minister would build up a body of knowledge relevant to the exercise of the decision vested in him and that that body of knowledge can reasonably be expected to include conditions in countries to which persons whose visas are cancelled may be returned. It was submitted that the Minister in this case, the Hon Peter Dutton MP, has been the Minister responsible for this portfolio since 2014, and there is good reason to think that he has developed experience from previous decisions involving returning former visa holders to Ireland.
58 There is authority to the effect that specialist decision makers or tribunals are entitled to rely on their expertise and accumulated knowledge garnered through repetitive decision making. For example, in Muin v Refugee Review Tribunal [2002] HCA 30; 190 ALR 601 the relevant applicant in the High Court's original jurisdiction sought judicial review of a decision of the Refugee Review Tribunal which in turn had conducted merits review of a decision of a delegate of the Minister. The particular factual issue at hand was whether the Indonesian authorities were willing and able to provide protection for Indonesians of ethnic Chinese background. Gleeson CJ observed (at [7]) that both the delegate and the Tribunal member were likely to have considered many cases involving conditions in, say, Indonesia and will have had access to official and other sources of information bearing upon political and social circumstances in an applicant's country of origin. The Chief Justice further observed, "As is often the case with administrative decision-makers, they are likely to accumulate knowledge from the repetitive nature of the matters with which they deal". His Honour later observed (at [12]) that the repetitive nature of the work of delegates and Tribunal members, the accumulation by them of a store of knowledge and experience, the availability to them of a kind of reference library, and the need to disclose their sources of information explain the identification of documents relied on by them in a broad and non-technical approach as "documents relevant to the position in Indonesia of Indonesian nationals of ethnic Chinese background and, also, to the ability and willingness of the Indonesian authorities to provide for their protection."
59 McHugh J (at [112]) also identified that the Tribunal would have had available to it the same computer databases or libraries that the delegate had had access to. Hayne J (at [263]) observed that the Tribunal members were obviously expected to develop and rely on knowledge of affairs in the countries from which claimants come. It may be that Tribunal members had heard accounts given to them by a series of applicants for protection visas who came from a particular country, and as those Tribunal members read more widely about the country concerned they developed body of knowledge upon which their views about the country was formed. As they become more knowledgeable their capacity comprehensively to identify the particular sources of their knowledge would ordinarily diminish.
60 Callinan J (at [300]) referred to a specialist tribunal accumulating specialist knowledge in the carrying out of its functions.
61 In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507, Hayne J (at [180]) observed that a body like the Refugee Review Tribunal will bring to the task of deciding an individual's application a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications. Such a body, unlike a court, is expected to build up "expertise" in matters such as country information. Often information of that kind is critical in deciding the fate of an individual's application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of pre-judgment.
62 As indicated, it was submitted on behalf of the Minister that "there is good reason to think that he has developed experience from previous decisions involving former visa holders to Ireland". Three cases were cited as examples in support of the submission, namely Pennie v Minister for Home Affairs [2019] FCAFC 129; Minister for Immigration and Border Protection v Egan [2018] FCAFC 169; 261 FCR 451 and Hempenstall v Minister for Home Affairs [2020] FCA 686. It is not apparent from these cases that they concern decisions by the same person as Minister and there is no evidence before me to show that they do. Moreover, none of the cases shows that the Minister concerned had information before him or her with respect to the level and availability of social benefits in Ireland.
63 In Pennie the appellant's complaint was that the Minister had not made findings on the appellant's submissions with regard to his fears of homelessness, financial devastation, lack of medical care and unemployment if he was returned to Ireland: at [10]. That was rejected by the primary judge whose judgment was upheld by the Full Court on the basis that the appellant had not put forward evidence on these matters and the Minister had no obligation to research them himself: at [11]-[12]. All that the Minister had said on these matters was to note that Ireland has comparable standards of healthcare, social welfare and housing support to Australia: at [10]. There is nothing to indicate that the Minister had before him, or that he accessed, any information about social services in Ireland. The case therefore offers no support for the proposition that the Minister has knowledge about the entitlement to social benefits in Ireland beyond the broad statement that he made with regard to standards here and there being comparable.
64 Egan concerns the revocation of Australian citizenship. There is nothing in the judgment to indicate that the standard or availability of social benefits or services in Ireland was a matter for consideration. The issue at hand was whether it was contrary to the public interest for the respondent naturalised citizen to remain an Australian citizen. Although consideration was given to the person's circumstances if they were returned to Ireland, that principally concerned the risk of them reoffending against children in Ireland as opposed to in Australia where they would be under the supervision of their bishop. The Tribunal's error was in assuming that revocation of citizenship would necessarily entail being returned to Ireland. None of that is supportive of the Minister's case before me.
65 Subsequent to the hearing in the present case judgment was delivered dismissing an appeal from the judgment in Hempenstall, viz. Hempenstall v Minister for Home Affairs [2020] FCAFC 216. The judgment at first instance reveals that there was contradictory information with regard to whether the applicant was from Ireland or the United Kingdom. It records that the Minister had found that on return to the United Kingdom the applicant would be able to access the same levels of medical, employment and social services available to other United Kingdom citizens: at [26]. Neither judgment indicates that the Minister had cause to give any consideration to the applicant's entitlement to social services in Ireland.
66 Returning to the present case, there is also nothing in the Minister's reasons or in the material that served before him, being the departmental submission and the attachments to the submission, which indicates that the Minister drew on accumulated knowledge in making the finding that he did about the applicant's entitlement to social services in Ireland.
67 Finally on this aspect, I do not consider that the Minister is in an analogous position to the specialist tribunals gathering accumulated knowledge and developing a reference library as referred to in Muin and Jia Legeng discussed above. He is not a specialist of that nature and his decision making responsibilities cover a wide variety of matters.
68 In those circumstances, the Minister had before him no evidence and no discernible accumulated knowledge in relation to the important question on which he made a finding that was central to his ultimate reasoning. The question is then whether that amounts to jurisdictional error.
69 It is important to distinguish cases such as Pennie where it has been recognised that it is up to the applicant for revocation to put forward evidence in support of any submission that they make, including with regard to the difficulties that they will face if they are returned to another country. That principle certainly applies in the present case. However, the Minister did not reject the applicant's submissions and that of his friend that he would face particular hardship if returned to Ireland in relation to homelessness and lack of access to a pension on the basis that they were unsupported by evidence. Instead, the Minister made a positive finding the effect of which is that the applicant will be entitled to the same level of healthcare and social and economic support in Ireland as would be available to him in Australia. There is no basis in the evidence before the Minister upon which that finding could have been made.
70 On behalf of the Minister, it was submitted that in order to demonstrate jurisdictional error, the applicant bears the onus of proving that the Minister did not have the specialist accumulated knowledge to permit him to make the findings. Reference was made to Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corp (1985) 1 NSWLR 561 at 565 and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 246 CLR 421 at [46]. It was submitted that the applicant had not discharged the burden, but I disagree. There is nothing inherent in the position of the Minister from which one would infer that he does have the requisite specialist accumulated knowledge in relation to the criteria for entitlement to social services in Ireland, and there is nothing before me to indicate that he does. Moreover, just what specialist accumulated knowledge the Minister has or relied on is peculiarly within his knowledge and he has failed to identify it. I therefore infer that he does not have the relevant accumulated knowledge.
71 It is important to draw a distinction between the two components to the Minister's impugned finding. I do not consider there to be any difficulty for the Minister to make the general statement, or finding, that Ireland and Australia have comparable standards of healthcare and social and economic support. That statement can be made in relation to Australia and many western democracies based on general knowledge and, possibly, the Minister's long experience in government including, I am prepared to assume, in dealing with other countries. It is the second component to the statement, namely that the applicant will be entitled to the same level of services as other citizens of Ireland that is the problematic one. The specific criteria for entitlement to social services can be technical and nuanced, and can certainly differ in material respects from one country to the next even where the standards of benefits or services are more generally comparable. As I have said, there was simply nothing before the Minister, or apparently available to him, on which he could make the finding that he did, and what was before him was to the contrary.
72 The parties identified that there are two views in the authorities as to the circumstances in which the making of a finding without evidence in support of it will amount to jurisdictional error. The one view is that a finding made with no evidence will only amount to jurisdictional error where the relevant finding is a "precondition to the exercise of jurisdiction". The Minister favoured that approach. The other view is that a finding made with no evidence will amount to jurisdictional error where the finding is a "critical step" in the ultimate conclusion of the decision maker. The applicant favoured that approach. It does not appear that there is High Court authority that is determinative on this point. Certainly, none was drawn to my attention.
73 The different approaches were identified by the Full Court in Australian Postal Corporation v D'Rozario [2014] FCAFC 89; 222 FCR 303 at [16] per Besanko J, [47] per Jessup J and [108] per Bromberg J. As in the present case, a state of satisfaction was required as a precondition to the exercise of the power in question. The requisite state of satisfaction was that the Full Bench of the Fair Work Commission be satisfied that it is in the public interest to grant permission to appeal from a decision of the Commission: at [33]. The finding for which it was contended that there was no evidence was that there was a particular "emerging trend" in decided cases of the Commission: at [42].
74 Besanko J held (at [16]) that the finding in respect of which it was said that there was no evidence was a precondition to the exercise of the power in question and that it was thus not necessary to choose between the two different approaches - the "precondition to the exercise of jurisdiction" approach being more stringent than the "critical step" approach. Jessup J identified (at [66]) existing Full Court authority that had recently held that to make a "critical" finding in the absence of evidence "may" amount to jurisdictional error, namely SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97; 187 FCR 109 at [125], Australasian Meat Industry Employees' Union v Fair Work Australia [2012] FCAFC 85; 203 FCR 389 at [92] and Soliman v University of Technology, Sydney [2012] FCAFC 146; 207 FCR 277 at [23]. Although his Honour (at [67]) entertained some reservations about both the reasoning and the outcomes in earlier authorities on which those authorities relied, namely SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 213; 77 ALD 402 at [19] and Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50 at [5] and [13], on the basis that the Court had not been invited to consider the correctness of those judgments his Honour took the view that the Court was obliged to decide the case consistently with them. Bromberg J expressed (at [117]) the same reservations as Jessup J and reached the same conclusion that the case had to be decided consistently with the prior authorities.
75 Save for a first instance decision which apparently applied the "precondition to jurisdiction" approach, namely ZGWQ v Minister for Home Affairs [2019] FCA 1096 at [11] per Robertson J, the Minister did not refer to authority in support of that approach. I was not referred to any authority in support of any argument that the Full Court decisions referred to in Australian Postal are no longer good law, and Australian Postal did not itself reach that conclusion. It follows that I consider that I am bound to apply the "critical step" approach. Since, as I have explained, the finding in question for which there was no evidence was a critical step in the Minister's reasoning to his ultimate conclusion, the Minister's error amounts to jurisdictional error.
76 Counsel for the Minister drew attention to authorities of this Court that have held that the Minister does not always require specific evidence in order to make comparative assessments as to the availability of health and welfare services in foreign countries: Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 at [69] (in relation to a finding that "in New Zealand Mr Uelese would have access to government benefits similar to those available to him in Australia"); McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109 at [37] (in relation to a finding that "New Zealand … has comparable standards of health care, education and social welfare support [to Australia]" and "Mr McLachlan will have equal access to these as do other New Zealand citizens"); Webb v Minister for Home Affairs [2020] FCA 831 at [99]-[100] (in relation to findings that (1) Ms Webb would have the same access to medical services and social welfare as other citizens of the United Kingdom; and (2) the standards of health care, social welfare and housing support in the United Kingdom would be "comparable" to those in Australia").
77 Counsel for the Minister nevertheless drew attention to the fact that in other cases the absence of specific evidence to support a finding has been held to involve error: Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 144 at [42]-[46] (in relation to a finding that some welfare and healthcare services exist in American Samoa and Samoa and that Mr Viane and his family "will have equal access to welfare, healthcare and educational services as do American Samoans and Samoans in a similar position"); Schmidt v Minister for Immigration and Border Protection [2018] FCA 1162; 162 ALD 495 at [34] (in relation to a finding that the United States has a government welfare system that offers a level of support "broadly comparable to that in Australia"). It follows that ground 2 should be allowed.
78 The apparently different conclusions in the different cases can be explained with reference to the differing facts and circumstances, and in particular what issues had been raised by the person seeking revocation of the cancellation of their visa and the specificity of the findings made. As I have indicated, it is the highly specific finding by the Minister that the applicant would be entitled to social services in Ireland in the same way as any other Irish citizen where exactly the contrary had been submitted to him that is the distinguishing feature of the present case.