Disposition
17 Both grounds of review are directed at a determination of what the law obliges the Minister to do when assessing, for the purposes of s 501CA(4)(b)(ii), whether there is "another reason why the original decision should be revoked". In particular, both grounds direct attention to what the law obliges the Minister to do when considering submissions received in accordance with a statutory invitation for representations made pursuant to s 501CA(3)(b). On one view, the law remains unsettled.
18 In Goundar v Minister for Immigration and Border Protection [2016] FCA 1203, Robertson J said at [56]:
As stated by the Full Court in Price v Elder [2000] FCA 133; 97 FCR 218 at [13], where a discretion is unconfined by the terms of the statute, a court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he or she is bound to do so is to be found in the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40. While I accept that under s 501CA(4) representations as a whole constitute a mandatory relevant consideration, I do not accept that any particular statement in the representations should be so characterised.
This observation was approved by a Full Court of this Court comprising Besanko, Barker and Bromwich JJ in Minister for Home Affairs v Buadromo [2018] FCAFC 151 at [41].
19 In contrast, in Hay v Minister for Home Affairs [2018] FCAFC 149, Colvin J (with whom White and Moshinsky JJ agreed), having considered Viane v Minister for Immigration and Border Protection [2018] FCAFC 116, expressed the test, perhaps differently, at [11] as follows:
In reaching the same result in Viane, I held at [66] that 'as the making of representations about the revocation of the original decision is a condition that must be met before the statutory power to revoke is enlivened, there is a statutory obligation on the part of the Minister to consider whether the required state of satisfaction is met by reference to the material presented in the representations'. Therefore, 'a state of satisfaction formed without considering each of the matters that are raised in the representations in a manner which identified them as significant would be a breach of the statutory requirement to consider the representations': at [72]. It would be a failure to conform to a part of the statute that must be met in order for there to be a valid exercise of power: at [75].
20 Colvin J went on to consider the decision of the High Court in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1 and the proposition that material non-compliance with a statutory precondition amounts to jurisdictional error. His Honour observed at [12]:
The threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if compliance 'could have made no difference to the decision that was made in the circumstances in which the decision was made': [Hossain] at [30].
Colvin J then observed that it was unclear whether the obligation on the Minister for the purposes of s 501CA was only to have regard to representations made by an applicant in a general sense, or whether the Minister was obliged have regard to particular matters. His Honour said at [14]:
However, it is a question of statutory construction as to whether the precondition is met if the Minister has regard to the representations in a general sense or whether the Minister must have regard to particular matters raised in order to conform to the statute. If the latter, then the question arises whether the precondition that must be met is to the effect that the Minister must consider only 'a substantial, clearly articulated argument' or a 'significant' matter or each and every matter. Whatever the requirement, if the Minister's state of satisfaction is formed without regard to particular matters that must be considered then there is a failure to comply with the statute. Further, Hossain makes clear that even if that requirement is not met, it is only if the failure is of a kind that meets the 'threshold of materiality' that the required state of satisfaction will not be formed in conformance with the statutory requirement with the consequence that there will be jurisdictional error.
21 Ultimately, it was not necessary for Colvin J finally to resolve the issue. More recently, in Smith v Minister for Home Affairs [2018] FCA 1594 at [61] Robertson J said:
As to mandatory relevant considerations, there is a tension between Minister for Home Affairs v Buadromo [2018] FCAFC 151 relied on by counsel for the Minister, and Hay v Minister for Home Affairs [2018] FCAFC 149, Hooton v Minister for Home Affairs [2018] FCAFC 142 and Viane v Minister for Immigration and Border Protection [2018] FCAFC 116. Buadromo does not consider Viane.
22 In Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216, Rares and Robertson JJ again noted the tension in the authorities and observed that, in any event, a decision-maker was not required to make findings of fact in relation to every claim or issue raised by an applicant. At [41], their Honours said:
In Buadromo, another s 501CA(4) case, the Full Court agreed at [41] with the observations in Goundar at [55]-[56], analysing the matter by reference to the language of mandatory relevant considerations. The Full Court said at [46] that a decision-maker was not required to make a finding of fact with respect to every claim made or issue raised by an applicant. A finding of fact may not be required if a claim or issue is irrelevant or if it is subsumed within a claim or issue of greater generality. In that case, the Full Court said at [58]-[60] that although the decision-maker did not make an express finding that Mr Buadromo will or will not find it impossible to obtain work in Fiji, the decision-maker addressed whether Mr Buadromo was likely to find employment in Fiji or sufficient employment in order to provide for his family. The decision-maker was not required, the Full Court held, to make a precise finding about Mr Buadromo's prospects of obtaining employment in Fiji. The decision-maker addressed the issue, finding that Mr Buadromo had work skills which may help him gain employment in Fiji and expressly found that his children would suffer hardship were Mr Buadromo to be in Fiji rather than Australia.
After also observing that resort to the language of "proper, genuine and realistic consideration" is to be avoided where possible, the applicable test was expressed in the following way 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: compare Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [22] per Perram J. Additional adjectives do not assist that analysis and indeed tend to distract from it by being "apt to encourage a slide into impermissible merit review": Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [30] citing Swift v SAS Trustee Corporation [2010] NSWCA 182; 6 ASTLR 339 at [45]. Because the Court must make its own qualitative assessment, the fact that a decision-maker says they have had regard to a representation does not by itself establish that they have, as a matter of substance, had that regard. Neither does the Court ignore such a statement.
23 In many cases an obligation to take into account representations made as a whole, as against taking into account "a substantial, clearly articulated argument" or "a significant matter", may, as a practical matter, amount to the same thing. As the Full Court observed in Maioha, it really is a case of evaluating whether the decision-maker has, as a matter of substance, had regard to the submissions put to him or her. For that purpose, there is no obligation for the Minister to record in his reasons for decision his consideration of each and every matter put to him by an applicant.
24 In relation to the first ground of review, there is an immediate difficulty: what did the Minister mean when he said that the applicant had "not expressed remorse directly to the Department". There is real ambiguity in the use of the word "directly". The evidence before me is as follows:
(1) The Department made a submission to the Minister which contained a series of attachments which included both the letter sent by Refugee Legal on 20 October 2017 and the statutory declaration. Paragraphs [43] - [44] of that Departmental submission state as follows:
In a submission dated 20 October 2017 [the applicant's] agent states 'Since being incarcerated [the applicant] has voluntarily re-commenced his medication and has had regular appointment [sic] with a psychologist'. The agent further states that [the applicant] is deeply remorseful for hurting his family and 'this has increased his commitment to maintain regular medication and cease his use of cannabis' (Attachment O).
[The applicant's] family believe that he has changed (Attachments C.7-C.10). [The applicant's wife] states that he is remorseful and 'I truly believe that he will not ever repeat any offences again' (Attachment C.7). [The applicant's] sisters submit that he has reflected on his actions, acknowledged his wrong-doing, and believe his family 'can change & encourage him to become better & to be mentally healthier' (Attachments C.8 & C.9). His friend … considers him no threat to the community (Attachment L.3).
(9) The Minister's reasons for decision state that the Minister considered "all evidence before [him] provided by, or on behalf of, or in relation to" the applicant.
(10) At [12] of the reasons for decision, the Minister then states relevantly as follows:
In the representations/documents submitted by or on his behalf, [the applicant] has articulated reasons why the original decision should be revoked, which include:
…
‒ That he is remorseful, no longer addicted to heroin, and has 'learned strategies for dealing with his anger'
…
25 In my view, the foregoing does not support the drawing of the inference that the Minister did not consider and take into account both the letter of 20 October 2017 and the statutory declaration, and their respective contents. In particular, [12] of the reasons for decision is a general finding about remorse which was based on the representations made to the Minister. In that respect, I note that [59] of the reasons is expressed as follows:
I have considered [the applicant's] submission that he has learned strategies to deal with his anger and is now 'free' from his heroin addiction. I have also considered the submission from [the applicant's] current agent that 'Since being incarcerated [the applicant] has voluntarily re-commenced his medication and has had regular appointment [sic] with a psychologist'.
26 A source of the observation that the applicant has "learned strategies" to deal with his anger is, I find, the very paragraph of the statutory declaration which the applicant contends the Minister overlooked. Even though the same phrase appears in the Departmental submission, because I am not satisfied that the Minister read that and nothing else, I cannot be satisfied that the submission was the sole source for the use of that phrase. On balance, I infer that the phrase "learned strategies" was probably the product of a consideration of both that paragraph and the Departmental submission. There was certainly no direct evidence before me that the Minister had not read the statutory declaration. It follows that I am not satisfied that the Minister overlooked the evidence about remorse relied upon by the applicant.
27 How then is one to explain the sentence in [60] of the reasons for decision about direct remorse? On balance, and after some hesitation, I think it should be read as a reference to the contents of the applicant's actual request for revocation of the Cancellation Decision made pursuant to s 501CA(4)(a) on 26 January 2016. That application does raise the issue of remorse but only, so far as I can tell, in the statutory declaration of the applicant's wife which was an attachment to the request. The applicant himself did not express remorse. Using the language from Maioha, I am satisfied that, as a matter of substance, the Minister had regard to the representations put to him.
28 In any event, if I am wrong, I am nonetheless satisfied that if the Minister misunderstood this aspect of the applicant's remorse, it was not a significant or material error. I find, that if the misunderstanding had been clarified, this could not have made a difference to the outcome. The Minister clearly understood that the applicant was remorseful, and took that into account for the purposes of s 501CA(4)(b)(ii). Notwithstanding the considerable force of the argument presented by Ms Kelly of counsel, the first ground of review is rejected. In my view, the Minister, as a matter of substance, had regard to and considered the representations put to him about the applicant's remorse.
29 I now turn to consider the second ground of review. The applicable evidence is as follows:
(1) the Leggett Letter was an attachment to the Departmental submission;
(2) it was also expressly referred to in two other documents which were attachments, namely the applicant's request for revocation dated 26 January 2016 and the letter from Refugee Legal dated 20 October 2017.
30 Because I am not prepared to infer that the Minister did not read the attachments to the Departmental submission, I am not satisfied that the Leggett Letter was overlooked by the Minister and never considered. I agree with the Minister's submission that, inferentially, the Minister did not find the contents of the Leggett Letter, which expressed conclusions in very general terms and was significantly out of date (by approximately one and a half years), to be material and that is why its contents were not mentioned in the reasons for decision.
31 If I am wrong in the inference that I have drawn, I am otherwise satisfied that if the Leggett Letter was overlooked, this was an error made within jurisdiction. I do not find that the contents of that letter might have caused the Minister to reassess his findings concerning the risk that the applicant would reoffend. That is because the Leggett Letter was subsumed by the incident which had taken place much more recently in 2017. I thus agree with Mr Tran's submission on this issue.
32 For these reasons, the application should be dismissed with costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward.