Consideration
60 The applicant contends that the Minister's decision is affected by jurisdictional error because the Minister made a materially erroneous factual founding that was not open on the evidence, being the finding at [101] that the applicant's "rehabilitation is yet to be tested in the community".
61 As the applicant submits, the materials before the Minister show that the applicant was living in the community, and not in custody, for just over 16-months from committing the offences on 28 May 2017 up to his sentencing and imprisonment on 4 October 2018. In his sentencing remarks Judge Bozic SC expressly said "[t]he offender has not spent any time in custody and so the sentence to be imposed will commence today" (CB 158). The materials show that the first time the applicant went into custody was on 4 October 2018.
62 The applicant argues that the 16-month period between his offending conduct and his incarceration was clearly a period in which, contrary to the Minister's statement at paragraph [101], his rehabilitation was, in fact, tested in the community. He contends that the Minister purported to rebut the applicant's submission that he was rehabilitated and presented a "very low" risk of reoffending by stating that the position was "untested" in real world conditions, and in doing so the Minister made an inference, not open on the materials, which worked to eliminate the force of the applicant's claim of having been rehabilitated.
63 The following materials before the Minister also showed that the applicant was not in custody between 28 May 2017 and 4 October 2018:
(a) An agreement for consent orders signed by the applicant and Ms Stanley in early August 2017 which recorded their agreement in relation to ongoing custody and access regarding their two sons (CB 256-257). The agreement provided that the applicant was to drop off and pick up the boys from child care and day care at specified times, and that the parties were to agree by text in relation to any periods which the children were to reside with the applicant. That was supported by the "Personal Circumstances Form" the applicant provided to the Department in June 2019 as part of his request for revocation (CB 214). In that form the applicant said that the access regime agreed between him and Ms Stanley was that he would pick up the two boys from school or day care on the Friday of every second weekend. On Fridays he would finish work by 3:00 pm to make sure to pick them up by 4:00 pm and his two sons would then sleep over on Friday, Saturday, Sunday and Monday nights. He would always take Mondays off work. On Tuesday morning he would get them ready for school and drop them off before he went to work. Obviously enough, there would be no need for such an agreement if the applicant was in custody;
(b) Ms Hare's report said that she assessed the applicant for one hour and 40 minutes at her offices in the Sydney CBD on 16 July 2018, and made it clear that he attended in person (CB 240-241). Obviously, the applicant could not have attended that appointment if he was in custody; and
(c) A letter to the applicant from the Child Support division of the Department of Human Services dated 9 July 2019 which made it clear that the applicant was gainfully employed for the period 1 August 2018 to 31 July 2019 and he had been required to pay $472.50 per month to Ms Stanley in child support in relation to the two boys. The letter also indicated that his employment was continuing as he was assessed to pay $486.33 per month in child support for the next period, 1 August 2019 to 31 October 2020 (CB 255). The applicant would not have been required to, and I infer would have been unable to, pay child support if he was in custody.
64 The Minister argues, first, that the applicant's submission is predicated upon a narrow and non-contextual reading of one sentence of the Tribunal's reasons. He submits, and I accept, that the Court should not be "astute to discern error" in the reasons of an administrative decision-maker. I proceed on the basis that the Minister's reasons should be read fairly, in context, and the reasons read as a whole: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 278, 282; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [38] per Kiefel CJ, Keane, Gordon and Steward JJ.
65 Second, the Minister contends that, on a fair reading, the impugned statement at [101] was not false as the applicant contends. He argues that the usual and ordinary meaning of rehabilitation is "the action of restoring someone to health or normal life through training in therapy after imprisonment, addiction or illness", and, on a fair reading, the Minister did not find or suggest that the applicant had not been in the community at any time since his commission of the offences in May 2017. Rather, the Minister found that the applicant was, at the time of the decision, in immigration detention (which was true) and that his rehabilitation was yet to be tested in the community. He submits that, read in context, the latter part of the statement at [101] meant that the Minister had no way of assessing the veracity of the applicant's representation to be a "very low" risk of reoffending in light of the various matters he had advanced as supporting his rehabilitation, because he had been incarcerated since those steps towards rehabilitation had been undertaken.
66 Relatedly, the Minister argues that he took into account the applicant's representations about the courses he had undergone while in prison (at [87]-[89]) and since being in immigration detention (at [90]). Counsel for the Minister submitted that the Minister took into account the applicant's representations about the applicant's insight into how he can ask for help (at [91]); the applicant's character references (at [93]); the opinion of Ms Hare as to the applicant's psychological disposition (at [95]) and the protective influence of his family, community and employment (at [98]-[99]). Counsel said that it was open to the Minister to weigh the fact that the applicant's rehabilitation was yet to be tested in the community, following his undertaking of the various courses while incarcerated, and having regard to the insight he had developed, against the applicant's professed rehabilitation. On the Minister's argument it is clear (at [92]) that he did not overlook the fact that the applicant enjoyed some freedom before being taken into custody in October 2018, as the Minister gave weight to the applicant having ceased drinking alcohol "approximately a month after the offence".
67 I do not accept the Minister's argument. To my mind, counsel for the Minister artfully sought to re-cast the Minister's reasons so that they mean something different from what the Minister actually said.
68 In the impugned statement (at [101]) the Minister said "[h]owever, I note that Mr Fetelika is currently in immigration detention and his rehabilitation is yet to be tested in the community." Plainly, the first part of the statement - "Mr Fetelika is currently in immigration detention" - was true. But I do not accept the Minister's contention that the latter part of the statement is a finding that the Minister had no way of assessing the veracity of the applicant's representation to be a "very low" risk of reoffending in light of the various matters he had advanced as supporting his rehabilitation, because the applicant had been incarcerated after he took those steps towards rehabilitation.
69 On a fair reading of the reasons as a whole, and reading the impugned statement in context, I am not persuaded that the latter part of the impugned statement should be understood as having the meaning for which the Minister contends. The Minister did not say that the applicant's efforts at rehabilitation after he went into custody had not been tested in the community. He made a more general statement about the applicant's rehabilitation which, on a fair reading, should be understood to have also captured the period before the applicant was imprisoned. In doing so, the Minister made an erroneous statement because the materials before the Minister indicated that the applicant took some substantial steps in his rehabilitation before he was imprisoned on 4 October 2018. Over that period his efforts at rehabilitation had been tested in the real world, and they could not be dismissed on the basis that they had not been.
70 The false statement related to an issue that was central to any risk of reoffending which the applicant posed to the Australian community. Its significance can be seen at several points of Minister's reasons.
71 First, the Minister noted (at [75]) that the Applicant had consumed five stubbies of beer at a work function prior to going around to Ms Stanley's house. At [80] the Minister endorsed Judge's Bozic SC's acceptance of Ms Hare's opinion that, although the applicant was not heavily intoxicated at the time of the offences, the alcohol he had consumed "would no doubt have detrimentally impacted his self-control". Thus the Minister accepted that one of the reasons the applicant engaged in the offending conduct was that he had been drinking on the evening of 27 May 2017.
72 The Minister went on to accept that the applicant had ceased drinking alcohol altogether from about a month after the offences (at [92]). In circumstances where alcohol had been a contributing factor to the applicant's offending conduct, his decision to abstain from consuming alcohol and his success in doing so was plainly an important step in his rehabilitation. In stating that the applicant's "rehabilitation is yet to be tested in the community" the Minister failed to take into account that for about 15 months prior to the applicant's conviction and incarceration the applicant had successfully abstained from alcohol; doing so while working productively (as the JF Painting reference shows) and apparently living peacefully in the community while at the same time dealing with the upset of a lost relationship and family unit, and the pressure of an impending court hearing and sole-parenting two young boys for four days a fortnight while working full-time.
73 Second, the Minister adopted Judge Bozic SC's acknowledgement that the applicant had pleaded guilty to the three charges against him (at [96]) and acknowledged (at [97]) that the applicant accepted full responsibility for his actions which he described as "unacceptable and unjustified", and accepted that the applicant was "ashamed" of his behaviour and remorseful for the pain he had caused his victims. In submissions counsel for the Minister accepted that the applicant's admission that his behaviour was wrong that and his statement of remorse were critical matters going to the question of the risk of the applicant reoffending.
74 The applicant's acceptance of full responsibility, together with his shame and remorse, culminated in a guilty plea on 4 October 2018. All of that occurred prior to the applicant's imprisonment, and plainly indicated that his efforts at rehabilitation were well advanced before he was imprisoned. In stating that the applicant's "rehabilitation is yet to be tested in the community" the Minister failed to take into account that the applicant was productively working and (apparently) peacefully living in the community for over 16 months prior to his incarceration, and he had come to accept that he was fully responsible for the offending, and become ashamed and remorseful for his conduct. In my view, it is likely that the applicant's introspection and understanding as to the cause(s) of his offending conduct, and his genuine efforts at behavioural change including by completely giving up alcohol, formed the major part of the applicant's efforts at rehabilitation, rather than his completion of training courses in prison some of which had little or nothing to do with rehabilitation.
75 In relation to the two matters referred to above, the Minister accepts that they are both relevant and were appropriate to be taken into account by him in relation to the general risk of reoffending, but he says that he did so. The Minister noted that he accepted (at [92]) that the applicant had ceased drinking alcohol altogether, from about a month after the offences, and thereby took that into account. He says that shows that he was aware that the applicant was out on bail at that time because it is obvious that the applicant would not be drinking alcohol while in prison. On the Minister's argument, in referring to "rehabilitation" (at [101]) the Minister was not referring to pre-imprisonment matters but rather to the steps towards rehabilitation the applicant had taken since imprisonment.
76 I do not accept the Minister's submission. It involves an attempt to recast the meaning of the latter part of the statement at [101], when on a fair reading of the reasons the Minister did not give consideration to the significant progress the applicant had made in his rehabilitation before he was imprisoned, which efforts, contrary to the impugned statement, had been tested in the community.
77 The Minister further argues that his reasons are set out in the way they are, and do not go into "greater detail" about the 16 month period the applicant spent living and working in the community before his incarceration because the applicant did not put his representations that way. The Minister submits that the applicant did not advance any particular argument or representation that he had achieved rehabilitation prior to his imprisonment, and instead his written submissions, his written statement, and the documents he lodged largely referred to courses and steps he had taken since he was taken into custody.
78 The Minister contends, and I accept, that he was obliged to engage in an active intellectual process with significant and clearly expressed relevant representations made in response to an invitation under s 501CA(3)(b) (citing Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531 at [30] per Rangiah J and [75] per Colvin J, with Reeves J agreeing; Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198; 267 FCR 492 at [47] (Jagot, Rangiah and Banks-Smith JJ)). He submits that it was not his obligation to make out the applicant's case, and he rejects the applicant's contention that it was immaterial that the applicant made no specific representations regarding the 16 month period he spent living and working in the community.
79 The Minister relies upon the remarks of Rares and Robertson JJ in Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643, where their Honours said (at [48]):
It should again be emphasised that the issue for the Minister was whether he was satisfied that there was another reason why the original decision to cancel the visa should be revoked. It was for the [revocation applicant] to put before the Minister by way of representation what it was she wished the Minister to take into account. The Minister had no legal duty, referable to jurisdictional error, to ask for further representations from the respondent or to make inquiries into the representations she had made.
80 He also relies upon the similar remarks of Flick J in that case (at [62]), where his Honour said:
An exercise of the discretionary power conferred by s 501CA(4) requires the consideration of "representations" which have been made by a visa holder: Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [55] to [56] per Robertson J; Minister for Home Affairs v Buadromo [2018] FCAFC 151 at [41] per Besanko, Barker and Bromwich JJ; Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198 at [47] per Jagot, Rangiah and Banks-Smith JJ. A proper consideration of "representations", however, does not require the consideration of all such matters as may be found to have been set forth in those "representations" by the visa holder. A visa holder is not to be permitted to pursue a course of parsing and analysing "representations" with a view to identifying some peripheral matter which has not expressly found its way into the reasons for a decision made under s 501CA(4) and to thereafter rely upon the absence of such a reference to establish jurisdictional error.
81 I have no difficulty with the authorities upon which the Minister relies but they are not apposite in the present case. It is uncontroversial that the applicant represented to the Minister that he was rehabilitated and presented a "very low" risk of reoffending. The Minister was required to give proper consideration to that representation. The applicant was not obliged to break down that representation into an argument that some parts of his rehabilitation occurred in the 16-month period prior to his imprisonment, and other parts occurred while he was in custody and then in immigration detention. The applicant was not to know that the suggestion that his rehabilitation had not been tested in the community would be raised by the Minister as a basis to undercut his representation as to the extent of his rehabilitation. Indeed, it was the Minister's error in stating that the applicant's rehabilitation "is yet to be tested in the community" which introduced the proposition upon which the Minister now seeks to rely.
82 Nor is the application concerned with the Minister's failure to go into "greater detail" about the 16 month period that the applicant spent peacefully and productively living and working in the community. In fact, the Minister gave that period little or no attention when it was an important matter to be considered in the context of the applicant's claim to be rehabilitated. In considering the extent of the applicant's rehabilitation and thus his risk of reoffending, the Minister either overlooked or failed to give meaningful consideration to the 16-month period prior to his imprisonment that the applicant had spent working productively and (apparently) living peacefully in the community, and no consideration to the fact that the applicant took some substantial steps in his rehabilitation before he was imprisoned. The Minister's statement (at [101]) indicates that he restricted his consideration to the steps in the applicant's rehabilitation taken while he was in custody and immigration detention, which had not yet been tested in the real world. On that basis, the Minister concluded that the risk of reoffending by the applicant was "low" rather than "very low", and he that he could not "rule out the possibility" of further offending by the applicant (at [112]). Counsel for the Minister properly accepted that there is a difference between those two estimates. The central point is that the Minister purported to rebut the applicant's submission that he was rehabilitated and presented a very low risk of reoffending including by noting that the position was untested under real world conditions. In doing so, the Minister made an inference, not open on the materials, which worked to eliminate (or at least significantly reduce) the force of the applicant's claim to having been rehabilitated.
83 Finally, the Minister submits that the impugned reasoning must be viewed having regard to the Ministers ultimate conclusion on risk. The Minister found the applicant was a "low risk" of reoffending (at [107]) and that he could not "rule out the possibility" of further offending (at [112]). The Minister argues that those finding were open on the evidence and, having regard to the Minister's reasons, could not possibly have led to a different outcome by consideration of the applicant's time in the community prior to his incarceration. He submits that it is not the case that the slender risk of reoffending that the Minister identified was the driving force behind the decision, and that the Minister was at pains to emphasise that the risk of the applicant reoffending was at the low end. He notes that the applicant bears the onus of establishing that the asserted error was a material error going to jurisdiction (MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ), and contends that the applicant failed to establish that, had the asserted error not been made, there was a realistic possibility of a different outcome.
84 I accept that the Minister's error must be viewed in the context of his ultimate conclusion as to the risk of the applicant reoffending, but I am nevertheless satisfied that the error is "material" in the sense explained in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1 and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421.
85 In SZMTA at [48]-[49] Bell, Gageler and Keane JJ explained that the requirement that, ordinarily, an error be material before it may constitute a jurisdictional error, involves an assessment by the Court as to whether there is a "realistic possibility" that the outcome could have been different had the error not been made. In Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; 276 FCR 75 at [66] per Mortimer and Bromwich JJ, the Full Court said that the adjective "realistic" in the phrase "realistic possibility" "is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable, no more than that." The same was said in DNQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 72; 275 FCR 517 at [60] (McKerracher, Mortimer and White JJ).
86 The Minister's reasons gave almost no attention to the fact that, following his offending conduct, the applicant was working productively and (apparently) peacefully in the community for about 16-months until his incarceration. In this period, he completely gave up alcohol, which had been a contributing factor to his offending, he came to accept that he was fully responsible for the events of that evening, and came to be deeply remorseful and ashamed of his actions, and he did not reoffend. In the same period, Ms Stanley, one of the victims of the violent assault, came to trust him enough to enter into shared parenting arrangements in relation to their two sons and they co-parented, apparently without incident, for about 14 months. In June 2019, I infer partly as a result of her interactions with the applicant prior to his incarceration, Ms Stanley said in her letter of support that she believed the applicant would forever be "regretful for his choices that day" and that she hoped that the applicant would have 50% custody of his children on his release.
87 In the circumstances of this case, the balancing exercise that the Minister was required to engage in involved matters of degree. Had the Minister given meaningful consideration to the fact that a substantial part of the applicant's rehabilitation had been tested in the community, there is a realistic possibility that the Minister could have reached a different decision and decided to revoke the visa cancellation decision.