Johnson v Minister for Home Affairs

1. The first respondent's decision of 31 July 2018 to refuse to revoke the cancellation of the applicant's visa is quashed.
2. The matter be remitted to the first respondent for reconsideration by the respondent of the question of law as to whether the cancellation decision be revoked. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 Mr Patrick Koma Johnson was born on 1 January 1974. He came to Australia at age 30 on 17 August 2004. The basis of his entry was lawful in that he was the holder of a Class XB Subclass 200 Refugee visa (visa) issued to him pursuant to the Migration Act 1958 (Cth). He was born in Nimule, South Sudan. In 2011, since his arrival in Australia, the Independent Republic of South Sudan has been established. What was once his country Sudan, has declared that persons eligible for South Sudanese citizenship would be stripped of their Sudanese citizenship from 1 March 2012. This has led to the administrative conclusion by the respondent, the Minister for Home Affairs (Minister), that it is likely that he has lost his Sudanese citizenship and now is likely to be eligible for South Sudanese citizenship. 2 On 15 December 2015 Mr Johnson was convicted in the Queensland Magistrates Court of an offence constituted by contravening, on 6 April 2015, a domestic violence order. In respect of this offence, he was sentenced to imprisonment for 15 months, although that was subject to an order that he be released forthwith on parole having served 11 days in prison from 7 to 17 December 2015. On that same day he was convicted of the following further offences for which the sentences detailed below were imposed: 54. On 17 December 2015, Mr JOHNSON was convicted in the Magistrates Court of Queensland of contravention of domestic violence order (on 6 April 2015). Mr JOHNSON received a 15 month sentence of imprisonment and was immediately released to parole having served 11 days from 7th to 17th December 2015. On the same day he was also convicted of the following offences: - assault or obstruct police officer - imprisonment one month concurrent, parole release date 17 December 2015. - contravention of domestic violence order (on 13 February 2014) - imprisonment four months concurrent, parole release date 17 December 2015. - contravention of domestic violence order (on 1 January 2014) imprisonment 12 months concurrent, parole release date 17 December 2015. - breach of bail granted condition (on 15 July 2012) - imprisonment one month concurrent, parole release date 17 December 2015. - breach of order - resp served with order (on 5 July 2012) - imprisonment nine months, parole release date 17 December 2015. The sentences of imprisonment imposed on 17 December 2015 led to the cancellation on 10 February 2017, of Mr Johnson's visa pursuant to s 501(3A), of the Act. The present proceeding entails no challenge, nor could it, as to whether there was a basis for that cancellation. As the Minister was required to do as a sequel to the cancellation, he extended, via an officer of his department, an invitation to Mr Johnson pursuant to s501CA of the Act to make a representation to him as to the revocation of the cancellation decision. Mr Johnson did that in February 2017 using for that purpose the personal circumstances form provided by the Minister's department. 3 It then fell to the Minister to consider whether or not to revoke the cancellation. On 31 July 2018, for reasons which were, along with the decision itself, communicated to Mr Johnson under cover of a letter from the Minister's department of 1 August 2008, the Minister decided not to revoke the cancellation of Mr Johnson's refugee visa. Mr Johnson then applied to this Court for the judicial review of the Minister's decision not to revoke the visa cancellation. 4 In respect of his judicial review application, Mr Johnson has had the benefit of advice and representation provided pro bono by two members of the Queensland Bar. Their commitment to the interests of justice is to be commended. I have been much assisted by their submissions, as I have been for that matter and in fairness, by those of Mr McGlade, for the Minister. I rather doubt whether without such mutuality and competence of representation it would have been possible to deal with this case to finality today. 5 The grounds of review are these: 1. The decision of Minister was vitiated by jurisdictional error on the basis that the Minister constructively failed to exercise his jurisdiction, or otherwise failed to carry out his statutory task, by forming a state of satisfaction under s 501CA(4)(b) to refuse to revoke a visa cancellation without considering significant information that was advanced in the Applicant's representations or was before the Minister. Particulars (a) At Annexure A ("AA") page 148, the Minister had available before him a representation by the Applicant that he had attended counselling while in detention. (b) This information was relevant, material and significant to assessing the Applicant's representations, particularly in determining what risk the Applicant posed to the Australian community and the extent of impediments the Applicant would experience if removed to South Sudan. (c) At Annexure D ("AD") paragraph [70], the Minister, in the context of considering the risk posed by the Applicant to the Australian community, stated that he had some cause for concern that the Applicant had not: "had the opportunity to engage in any required counselling to assist with his traumatic background issues." (d) The information was therefore not considered by the Minister when he dealt with counselling at AD [70], or elsewhere in the Minister's reasons for his decision, in contravention of s 501CA(4)(b) of the Act. (e) Additionally, at AD [71] the Minister, in the context of considering the risk posed by the Applicant to the Australian community, stated that: "I remain guarded about [the Applicant's] rehabilitative efforts at this time and hold some doubt as to his ability to sustain his commitment to remaining alcohol free upon a return to the community." (f) At AD pages 124 and 93, the Minister had available before him: (i) The representation by the Applicant that he had obtained accreditation in Responsible Service of Alcohol while in detention; and (ii) The submission of the solicitor appearing on behalf of the Applicant during proceedings in the Magistrate's Court on 19 May 2017, which concerned the Applicant's contravention of a domestic violence order on 27 January 2017, that the Applicant instructed that he did not usually excessively consume alcohol, did not drink on a regular basis and had done a "responsible alcohol course". (g) This information was relevant, material and significant to the Minister's decision, particularly his conclusion that there was ongoing risk that the Applicant would reoffend. (h) This information was not considered by the Minister when he dealt with the Applicant's relationship with alcohol at AD [68]-[71], or elsewhere in the Minister's reasons for his decision, in contravention of s 501CA(4)(b) of the Act. (i) Additionally, at AD [58]-[59] the Minister, in the context of considering protection of the Australian community with reference to the Applicant's criminal conduct, described the Applicant's contravention of domestic violence order on 27 January 2017. (j) At AD page 91, the Minister had available before him the submission of the Prosecutor during proceedings in the Magistrate's Court on 19 May 2017, which concerned the Applicant's contravention of a domestic violence order on 27 January 2017, that during the incident the aggrieved told the Applicant that "he should come back in the daytime." (k) This information was relevant, material and significant to the Minister's decision, particularly his consideration of protecting the Australian community with reference to the circumstances of the Applicant's offending. (l) This information was not considered by the Minister when he described the incident on 27 January 2017 at AD [57]-[59], or elsewhere in the Minister's reasons for his decision, in contravention of 501CA(4)(b) of the Act. 2. Additionally, or alternatively, the decision of the Assistant Minister was vitiated by jurisdictional error on the basis that the Assistant Minister made inferences or findings in the absence of evidence. Particulars (a) As particularised above, the Minister made the inference or finding that the Applicant had not had the opportunity to engage in any required counselling to assist with his traumatic background issues. (b) The Minister had available before him the representation by the Applicant that he had attended counselling while in detention. (c) There was therefore no evidentiary foundation in the material that was before the Minister for any such inference or finding that the Applicant had not had the opportunity to engage in any counselling. (d) Additionally, at AD [61] the Minister, in the context of considering protection of the Australian community with reference to the Applicant's criminal conduct, made the inference or finding that the imposition of sentences of imprisonment of increasing duration for breaches of domestic violence orders did not act as a deterrent to the Applicant's offending. (e) At AD pages 81-83, 102 and 106, the Minister had available before him: (i) Evidence that the first time that a sentence of imprisonment was imposed on the Applicant for a domestic violence related offence was on 17 December 2015, when the longest sentence imposed was 15 months to be served concurrently alongside imprisonment for other domestic violence related offences; (ii) Evidence that the next time that a sentence of imprisonment was imposed on the Applicant for a domestic violence related offence in a separate proceeding was on 19 May 2017, when the sentence imposed was 9 months to be served concurrently; and (iii) Evidence that no further sentences of imprisonment were imposed on the Applicant for a domestic violence related offence in any subsequent proceeding. (f) The evidence before the Minister did not establish that sentences of imprisonment of increasing duration for breaches of domestic violence orders were imposed on the Applicant. (g) There was therefore no evidentiary foundation in the material that was before the Minister for any such inference or finding that the imposition of sentences of imprisonment of increasing duration for breaches of domestic violence orders did not act as a deterrent to the Applicant's offending. 3. Additionally, or alternatively, the decision of the Minister was vitiated by jurisdictional error on the basis that the Minister's decision, or findings in support of that decision, was illogical or irrational, as it was not open on the evidence, or there was otherwise no logical connection between the evidence and the findings made. Particulars (a) As particularised above, the Minister made finding that the Applicant had not had the opportunity to engage in any required counselling to assist with his traumatic background issues. (b) The Minister had available before him the representation by the Applicant that he attended counselling while in detention. (c) The Minister's finding was illogical or irrational because: (i) It was not open on the evidence of the Applicant's representation that he had attended counselling; (ii) There was no logical or rational connection between the evidence that the Applicant had attended counselling and the Minister's conclusion that he had not; (iii) It was irrational for the Minister not to consider the Applicant's counselling before discounting the extent of impediments for the Applicant being removed to South Sudan; (iv) It was irrational for the Minister not to consider the Applicant's counselling in considering whether the Applicant posed a risk to the Australian community; and (v) It was irrational for the Minister not to consider that the Applicant would be more likely to need counselling in South Sudan than in Australia. (d) Additionally, as particularised above, the Minister made the finding that the imposition of sentences of imprisonment of increasing duration for breaches of domestic violence orders did not act as a deterrent to the Applicant's offending. (e) As particularised above, the evidence before the Minister did not sentences of imprisonment of increasing duration for breaches of domestic violence orders were imposed on the Applicant. (f) The Minister's finding was illogical or irrational because: (i) It was not open on the evidence; and (ii) There was no rational or logical connection between the evidence and the Minister's finding that sentences of imprisonment of increasing duration for breaches of domestic violence orders were in fact imposed on the Applicant and, moreover, they did not act as a deterrent to the Applicant's offending. (g) Further, the Minister's state of satisfaction under s 501 CA(4)(b) was one at which no rational or logical decision-maker could arrive at on the same evidence because, as particularised above: (i) The Minister's reasoning misconstrued or otherwise failed to consider the representation by the Applicant that he had attended counselling while in detention; and (ii) The Minister's reasoning misconstrued or otherwise failed to consider evidence that sentences of imprisonment of increasing duration for breaches of domestic violence orders were not imposed on the Applicant. 3. Additionally, or alternatively, the decision of the Minister was vitiated by jurisdictional error on the basis that the Minister failed to afford the Applicant procedural fairness by: (a) Failing to consider significant material that was advanced in the Applicant's representations, or was otherwise before the Minister, as to why the Minister should have revoked an earlier decision to cancel the Applicant's Visa; and (b) Failing to advise of an adverse conclusion arrived at by the Minister, which was not obviously open on the known material. Particulars (i) As particularised above, the Minister had available before him: (1) The representation by the Applicant that he had attended counselling while in detention; (2) The representation by the Applicant that he had obtained accreditation in Responsible Service of Alcohol while in detention; (3) Evidence that the Applicant did not usually excessively consume alcohol and did not drink on a regular basis; and (4) Evidence that during the incident in which the Applicant contravened a domestic violence order on 27 January 2017, the aggrieved told the Applicant that "he should come back in the daytime." (ii) As particularised above, the Minister failed to consider this evidence, which was relevant, material and significant to his decision. (iii) Procedural fairness obliged the Minister to consider this evidence. (iv) Additionally, as particularised above, the Minister made findings for which there was no evidence that: (1) The Applicant had not had the opportunity to engage in any required counselling to assist with his traumatic background issues; and (2) The imposition of sentences of imprisonment of increasing duration for breaches of domestic violence orders did not act as a deterrent to the Applicant's offending. (v) These finding were adverse conclusions which were not obviously open on the known material. (vi) Procedural fairness obliged the Minister to identify and provide the Applicant with an opportunity to comment on these conclusions. The Minister did not do so. 4. Additionally, or alternatively, the decision of the Minister was vitiated by jurisdictional error on the basis that the Minister failed to take into account a relevant consideration or took into account an irrelevant consideration. Particulars (a) As particularised above, the Minister had available before him the representation by the Applicant that he had attended counselling while in detention. (b) The Minister failed to properly take into account the Applicant's representation by not addressing this discrete matter raised for his consideration, or otherwise took into account an irrelevant consideration, being the failure of the Application to engage in any required counselling. (c) Additionally, as particularised above, the evidence before the Minister did not establish that sentences of imprisonment of increasing duration for breaches of domestic violence orders were imposed on the Applicant. (d) The Minister failed to properly take into account evidence of the imposition of imprisonments for domestic violence related offences on the Applicant, or otherwise took into account an irrelevant consideration, being that sentences of imprisonment of increasing duration for breaches of domestic violence orders were in fact imposed on the Applicant and, moreover, they did not have act as a deterrent to the Applicant's offending. (e) Additionally, as particularised above, the Minister had available before him: (i) The representation by the Applicant that he had received accreditation in Responsible Service of Alcohol; (ii) Evidence that the Applicant did not usually excessively consume alcohol and did not drink on a regular basis. (f) The Minister failed to properly take into account the Applicant's representation by not addressing this discrete matter raised for his consideration, and otherwise failed to properly take into account evidence that was before him. (g) Additionally, as particularised above, the Minister had available before him evidence that during the incident in which the Applicant contravened a domestic violence order on 27 January 2017, the aggrieved told the Applicant that "he should come back in the daytime." (h) The Minister failed to properly take into account this evidence before him, which gave context to the Applicant's relevant offending. 6. Additionally, or alternatively, the decision of the Minister was vitiated by jurisdictional error on the basis that the Minister made a decision, or adopted a mode of reasoning, that was legally unreasonable because: (a) the Assistant Minister's decision involved a recognised species of jurisdictional error in the decision making process; and (b) the Assistant Minister's decision was otherwise legally unreasonable. Particulars (i) The Minister reached the conclusion that he was not satisfied, for the purposes of s 501CA(4)(b)(ii), that there was another reason why the original decision under s 501 (3A) to cancel the Applicant's visa should be revoked. (ii) The Minister's decision was legally unreasonable because, as particularised above, it involved identifiable species of jurisdictional error which are: (1) A constructive failure to exercise jurisdiction or a failure to otherwise carry out a statutory task; (2) The making of findings in the absence of evidence; (3) The making of a decision or a finding in support of that decision that was irrational or illogical; (4) A failure to afford the Applicant procedural fairness; and (5) A failure to take into account relevant considerations. (iii) Additionally, as particularised above, the Minister's conclusion was legally unreasonable because he gave disproportionate weight to the Applicant's risk to the Australian community by: (1) Ignoring evidence that the Applicant had received counselling; (2) Misconstruing evidence of the imposition of imprisonments for domestic violence related offences on the Applicant; (3) Ignoring evidence that the Applicant had received accreditation in Responsible Service of Alcohol; (4) Ignoring evidence that the Applicant did not usually excessively consume alcohol and did not drink on a regular basis; and (5) Ignoring the context in which the Applicant's latest domestic violence offence occurred, having regard to the fact that the aggrieved had told the Applicant to "come back in the daytime" when the Applicant would be permitted to see his children. 6 Sometimes prolixity in pleadings is not to be commended. In this case though the detail of the particularisation of the grounds of claim sets out fully the nature of the submissions which came to be advanced on behalf of Mr Johnson. At the heart of the grounds of review as developed in submissions is a quite short proposition with a very long public law tail attached to it in terms of whether there is any resultant jurisdictional error. To explain that requires the setting out of particular passages from the Minister's reasons. 7 The offending conduct to which I have already referred is by no means exhaustive of the offending conduct in which Mr Johnson has engaged since his arrival in Australia. The Minister, as his reasons make apparent, was very well seized of this indeed. These disclose that, notwithstanding his conviction and sentencing in respect of multiple offences including a contravention of a domestic violence order in December 2015 that a further conviction was recorded on 19 June 2017, in respect of another contravention of a domestic violence order. That resulted in a sentence of nine month's imprisonment. There was also a prior history to all this recited by the Minister between paras 59 and 62: 59. I note that the sentencing Magistrate acknowledged that whilst there was 'no actual physical violence', Mr JOHNSON had carried on like a 'pest' and threatened that 'if he got inside, she would will know who he is and he will make her life miserable'. 60. I note with concern that Mr JOHNSON's criminal history records breaches of domestic violence orders on 6 May 2011, 17 July 2011, 5 July 2012, 1 January 104, 13 February 2014, 6 April 2015 and 28 January 2017. Dispositions included no conviction recorded discharged absolutely and no conviction recorded not further punished. 61. Mr JOHNSON's criminal history indicates that he has breached domestic violence orders on multiple occasions. I note that the imposition of sentences of imprisonment of increasing duration did not act as a deterrent to his offending. I find Mr JOHNSON's offending behaviour to be very serious. 62. Mr JOHNSON's criminal history also includes multiple convictions for serious traffic offences for which he received terms of imprisonment. On 13 February 2012 he was convicted of disqualified driving and driving under influence of liquor (over high a/limit). A single penalty was imposed for both convictions of two months' imprisonment concurrent and wholly suspended for nine months, and license disqualification for two years. On 17 December 2015, Mr JOHNSON was convicted of disqualified driving for which he received a five month term of imprisonment. [sic] Hardly unreasonably in respect of the criminal history and traffic history rehearsed by him in his reasons, the Minister observed at para 65: 65. Having regard to Mr Johnson's criminal history including multiple breaches of domestic violence orders, assault or obstruct police officer and repeated sentences of imprisonment as well as his multiple driving offences including drink driving I find overall that Mr Johnson's criminal history is very serious. 8 Having made that finding, the Minister proceeded to assess the question of risk to the Australian community. The nature of the challenges made to the Minister's decision is such that it is necessary to set out in full the Minister's reasoning in respect of that subject: 66. I have considered whether Mr JOHNSON poses a risk to the Australian community through re-offending by having regard to any mitigating or causal factors in his offending, and giving consideration to the steps Mr JOHNSON has undertaken to reform and address his behaviour. I have also taken into account Mr JOHNSON's overall conduct in the custodial environment, and his insight into the offending. 67. In considering the mitigating circumstances relevant to Mr JOHNSON's risk of reoffending, I have had regard to his assertion that alcohol was the main factor driving his offending. I have considered representations from Mr JOHNSON attributing his problems with alcohol to his difficult childhood and the lack of a male role model in his life, given he was raised by his mother. I also take into account the sentencing remarks on 19 May 2017 which acknowledge Mr JOHNSON's level of intoxication at the time of his offending. I am also aware of Mr JOHNSON's convictions in 2010 and 2012 for drink driving offences which provide a further indication of Mr JOHNSON's history of breaching the law whilst under the influence of alcohol. 68. I have considered Mr JOHNSON's submission that whilst in prison he identified alcohol as the cause of his offending behaviour and learned how it can damage human life, family and the community. Mr JOHNSON's submits that he has also identified a solution to his problem which he submits 'is to give up alcohol'. Mr JOHNSON states that it his intention to attend Alcoholics Anonymous (AA) upon returning to the community 'to become the man my wife and kids love'. 69. I have also taken into account that on 17 December 2015, the court acknowledged Mr JOHNSON's 'very, very difficult background', including having experienced the civil war in Sudan, fleeing South Sudan and spending ten years in a Kenyan refugee camp. 70. In considering Mr JOHNSON's progress to rehabilitation, I accept he has a genuine intention to commit to lead a law abiding lifestyle, recognising his alcohol issues. However, I note that Mr JOHNSON has been afforded multiple opportunities by the courts to progress with rehabilitation yet alcohol continued to be a factor in his offending. I also have some cause for concern that Mr JOHNSON has not fully dealt with his alcohol addiction or had the opportunity to engage in any required counselling to assist with his traumatic background issues. 71. I am also mindful that Mr JOHNSON's stated rehabilitative efforts and his ability to refrain from alcohol abuse, is yet to be tested in the community as he has been in prison since 30 January 2017 and immigration detention since 21 November 2017. I therefore I remain guarded about his rehabilitative efforts at this time and hold some doubt as to his ability to sustain his commitment to remaining alcohol free upon a return to the community. 72. I note that Mr JOHNSON's behaviour in Immigration Detention and his prison conduct has been without incident and I accept this behaviour to be a positive step to rehabilitation. 73. I acknowledge that Mr JOHNSON has engaged in vocational training in prison to avoid further offending and to make a positive contribution to the community. I accept that these courses will assist Mr JOHNSON in his general rehabilitation and in his employment prospects. 74. In considering the remorse Mr JOHNSON has shown concerning his offending, I note from the sentencing remarks of 17 December 2015 that Mr JOHNSON has cooperated with the administration of justice by pleading guilty at an early stage of proceedings, and was afforded a reduction in the penalties he would otherwise have had imposed. I accept that Mr JOHNSON's early guilty plea is indicative of his remorse. 75. I have also had regard to a submission from Mr JOHNSON in which he accepts full responsibility for his offending and the implications for his family if he loses his visa. The Magistrate noted in 2015 that Mr JOHNSON's contravention of a protection order indicated a lack of insight, and I consider that the contraventions in 2017 further indicate a lack of insight on Mr JOHNSON's behalf regarding his behaviour. I accept Mr JOHNSON has shown some remorse and insight into his offending. I have also considered that the cancellation of his visa may have had a salutary effect on Mr JOHNSON. 76. In considering the protective factors available to Mr JOHNSON to reduce his risk of reoffending upon returning to the community, I note that he has support from the Mormon Church. I find that this support may assist Mr JOHNSON to refrain from reoffending. 77. However, in considering Mr JOHNSON's response to conditional liberty, I note with concern that he has a number of convictions for breaches of judicial orders including failure to appear, breach of order, breach of bail granted condition and contravention of domestic violence orders. I find that this demonstrates a further disregard for the law that I find indicative of a propensity to reoffend. I further note that Mr JOHNSON has been convicted for disqualified driving on four occasions and driving under the influence on three occasions, which also indicates a lack of respect for Australian laws. 78. I have also considered the fact that Mr JOHNSON was described by the Magistrate in 2015 as 'not a stranger to the courts' and a recidivist offender. The Magistrate in 2015 also made it clear to Mr JOHNSON that further offending or breaches of domestic violence orders will result in 'very significant consequences'. I find Mr JOHNSON's further offending despite the Magistrate's clear warning to indicate that the sanctions of the courts have not had a salutatory effect upon him. 79. Overall, I have taken into account the mitigating factors in relation to Mr JOHNSON's offending, including his remorse for his offending, his participation in vocational programs in prison and his satisfactory behaviour in criminal custody and immigration detention, and the support he has available to him upon returning to the community. 80. Notwithstanding the above, I have also taken into account factors contributing to Mr JOHNSON's risk of further offending, including his history of alcohol abuse and that he has not fully rehabilitated and his refraining from alcohol is yet untested in the community, his prior lack of insight into his offending shown by his recidivist offending, including breaches of conditional liberty and court orders. I am also mindful that Mr JOHNSON has had previous opportunities to rehabilitate himself in the community, which he has not acted upon, and that previous dispositions, including imprisonment failed to deter him from reoffending. 81. In conclusion, I find that there in an on-going risk that Mr JOHNSON will reoffend. 82. I have considered the harm caused by Mr JOHNSON's offending and the risk to the Australian community should he reoffend. I regard domestic violence as of particular concern, in view of the vulnerability of family victims and the very harmful effect on family life. 83. Should Mr JOHNSON reoffend in a similar manner in the future involving domestic violence in particular, there is a risk he could cause physical and/or psychological harm to a member, or members, of the Australian community. [emphasis added] 9 There were factors which told against revocation. These were, subject to one qualification, canvassed by the Minister responsively to the representation and further correspondence from Mr Johnson. In particular, the Minister gave very particular consideration to the interests of children both biological and otherwise with whom Mr Johnson had relationships. The Minister also made particular favourable reference to a positive contribution to the Australian community made by Mr Johnson through his employment here over some seven years, his educational and cultural activities which he detailed in his reasons and also to the consequences of the non-revocation of the cancellation decision for both Mr Johnson's ex-wife, his de facto partner, his adult step children and other family members. 10 The Minister likewise took into account what he regarded as the substantial hardship which Mr Johnson would experience in adjusting to live in South Sudan and in accessing their basic services and maintaining basic living standards. For all that though, the Minister came to the view at para 91 that Mr Johnson represented an unacceptable risk of harm to the community and that the protection of the Australian community outweighed the best interests of his children and stepchildren even as a primary consideration as well as the other favourable considerations he had mentioned. 11 Without more, one might regard this as a hard but nonetheless unremarkable Ministerial value judgment. But there is more. 12 The more is to be found in a letter of 30 May 2018, written by Mr Johnson in response to an invitation, extended to him by an officer of the Minister's department by a letter dated 29 May 2018, to comment upon particular information which was enclosed with that letter. 13 It is not necessary for the purposes of determining the present application to assess the adequacy or otherwise of the letter of 29 May 2018 as discharging a procedural fairness obligation in terms of drawing attention to particular critical information which might adversely affect Mr Johnson's interests in relation to a revocation decision. I only make the observation that merely to enclose particular documents, as this letter did, without highlighting what there is about them which may be adverse, might be regarded as insufficiently particularising potentially adverse information. 14 Mr Johnson was, though, invited to comment upon the information in the documents enclosed. He did this in his own handwriting with some eloquence of English expression. It is not necessary to set out all of his letter, only this passage: I would also like to update the department about my counselling program. I have covered a lot of topic such as emotion, anger, alcohol, feelings and behaviour, forgiveness and recreating identity. 15 There was a statutory obligation for the Minister to furnish Mr Johnson with reasons for his decision: see s 501G of the Act. It has been held that where reasons furnished in a Ministerial endeavour to comply with s 501G omit reference to a particular subject an inference arises that the subject was not considered by the Minister: see Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [19]. That is not to say that such an inference is conclusive of that fact. It may be that read as a whole the reasons do disclose that, at least in a general way, a particular subject or detail in representation or other submission from a person whose visa has been cancelled has been considered by the Minister prior to the making of his revocation decision. 16 A submission was made on behalf of the Minister that, read as a whole, the reasons did disclose that the subject of counselling undertaken had been considered by the Minister. Of course, the Minister's reasons must be read as a whole and not narrowly and with an eye for error. Even allowing for this, I am unable to see that the particular passage in Mr Johnson's letter of 30 May 2018 in which he makes reference to having undertaken counselling was responsively considered at all by the Minister. 17 In my view, the passage which I have highlighted from para 70 of the Minister's reasons is eloquent proof, particularly in the word "any", that the undertaking of counselling referred to by Mr Johnson just was not Ministerially considered. It is unnecessary in this case to decide whether or not the subject of risk to the Australian community was or was not a relevant consideration in the sense in which that can amount to a jurisdictional error if not taken into account. That is because the Minister chose, at least voluntarily if not in compliance with a requirement, to take the consideration into account to do just that. 18 It is pellucid that risk to the Australian community was influential and, in the end, decisive in the Minister's decision not to revoke cancellation. In turn, in the reasoning process which attended the Minister's evaluation of risk, absence of an opportunity to engage in "any required counselling to assist with his traumatic issues" was an essential plank in the Minister's evaluation of risk. So the case is one, therefore, where the evaluation of risk has been predicated upon an incorrect finding of fact, resulting from a failure to consider a statement in a letter sent in response to an invitation to make submissions. 19 SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 (SZLGP), was an asylum seeker rather than a visa cancellation on criminal conviction and imprisonment case on character grounds case. It arose against the following background: the then Refugee Review Tribunal (Tribunal) had affirmed a decision by a delegate of the Minister not to grant to the appellant a protection visa. The Tribunal had done that on the basis of not accepting the appellant's evidence or the authenticity of particular critical documents. One of those was a letter written by his employer to government authorities after he had fled from his home country. That letter corroborated the appellant's claimed fear of persecution by confirming that he had been involved in dissident activity and that he had come to the adverse attention of the authorities. The Tribunal questioned the appellant as to how that letter came into his possession. What the Tribunal did not appreciate was that at the foot of the letter there was a note stating that a duplicate was to be delivered to the appellant. The appellant was unrepresented at the hearing conducted by the Tribunal and unable to answer questions to the Tribunal's satisfaction. That inability to explain the letter informed the reasoning on the part of the Tribunal to discount his overall credibility and to conclude that the letter was fraudulent. In the result, I determined that the Tribunal's oversight in relation to that note and the letter was an error going to jurisdiction. 20 In explaining why that was so, I gained assistance from observations made by Lee J in WAHP v Minister for Immigration and Multicultural Affairs [2004] FCAFC 87 and, in turn, from a discussion of that case in the then current edition of Aronson, Dyer and Groves; "Judicial Review of Administrative Action". The passage concerned is somewhat lengthy, but it is necessary to set it out in full in order to explain the nature of a challenge made by Mr Johnson to the Minister's decision, as well as a riposte made on behalf of the Minister: 33 The foregoing passage was elaborated by Gleeson CJ and McHugh J in Abebe at [83], where their Honours said that the fact that an applicant: '…might fail to make out an affirmative case in respect of one or more of the above steps did not necessarily mean that the claim for refugee status must fail. As Guo [at 575-576] makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution. The Tribunal "must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution" [Guo at 576].' 34 As Brooke LJ, with whom Robert Walker LJ concurred, said in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 at 469-470: 'For the reasons much more fully explained in the Australian cases, when considering whether there is a [real risk] of persecution for a convention reason if an asylum seeker is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur.' 35 In its treatment of the issue the Tribunal failed to act according to law. There was no material before the Tribunal on which it could make the finding that the letter from the mother had been "fabricated". The statement by the Tribunal that the letter had been "fabricated" was a bare assertion. The Tribunal did not identify whether the act of fabrication consisted of false statements made by the mother, or the presentation of a document purporting falsely to be a letter from the mother. 36 Furthermore, it was obvious in the circumstances that the Tribunal should have given an appellant to opportunity of comment upon, and deal with, the Tribunal's assertion that the letter had been "fabricated". (See: WACO v Minister for Immigration and Multicultural Affairs [2003] FCAFC 171 at [54]-[56]); Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370 at 382, 383, 388; WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188 at [52]-[55]; WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106 at [51]-[56]). 37 The Tribunal's treatment of the letter tainted the review process with fundamental unfairness to the appellant. There was nothing on the face of the document that raised any suspicion of forgery and nothing in the conduct of the appellant, or the appellant's advisor, to suggest that either had arranged for the transmission from Iran to Australia of a false document. 21 That particular approach in SZLGP, which formed one basis upon which the Federal Magistrates Court's failure to quash the Tribunal's decision was overturned, was endorsed by Flick J in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [30] (SZSHV), in the course of a noteworthy discussion as to bases upon which findings as to credibility might be productive of jurisdictional error. The discussion, though, by his Honour is by no means confined just to credibility-based findings of fact. It has a wider resonance. More recently in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 (CQG15), the Full Court made this statement in relation to the discussion in SZSHV by Flick J, which included a reference, amongst other cases, to my earlier judgment in SZLGP and which was relied upon by the appellant in that case: 58 The appellant's statements of principle can be fully accepted. It is largely a question of ascertaining whether the application of principle, by reference to the findings made in this particular case, demonstrates error of the kind to which the appellant points. 22 So the question at the heart of the present case, in my view, is whether the error in the Minister's finding was such that it vitiated, for reasons of illogicality or irrationality, the Minister's decision. In CQG15, the Full Court cited with approval a summary of principle, which Wigney J had offered in Minister for Immigration and Border Protection v SZUXN [2016] 69 AAR 210: 52 As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, "extreme" illogicality or irrationality must be shown, "measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusion". And as McKerracher J (who whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion. … 54 The judgment of Crennan and Bell Jj in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings "on the way" to the final conclusions (see 648): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62]. 55 Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal's decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal's ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67]. 56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal's decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal's decision-making processes from scrutiny; SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-466 [14]-[15]. That is because assertions of illogicality and irrationality can all to readily be used to conceal what is in truth simply an attack on the merits of the Tribunal's findings and decisions. In SZMDS, Crennan and Bell Jj (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned. 23 The present is not, in my view, one of those cases where reasonable minds might reasonably differ as to the conclusions reached by the Minister. If that were the case, there would be no jurisdictional error. Error is not to be found just because one particular conclusion has been preferred to another possible conclusion: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]. 24 Instead, the case is rather closer, and, in my view, not readily distinguishable, from the jurisdictional error found by me in SZLGP for the reason given in the passage quoted from that case. 25 An alternative foundation for a conclusion as to jurisdictional error was taken up in Mr Johnson's grounds of review in his reliance upon an absence of procedural fairness. That is an alternative way of viewing the jurisdictional error raised by the facts of this case, having regard to the letter and the Minister's reasons. The reason for that I gave in SZLGP at [38]: 38 An alternative way of approaching matters is also exposed by the learned authors of Judicial Review of Administrative Action under the heading "Fact review by the imaginative uses of other grounds" (at p 273 et seq). While I should respectfully question the aptness of the descriptor, "imaginative", it is nonetheless, in my opinion, a denial of procedural fairness to a visa applicant for the Tribunal to subject him to questioning, upon the answers to which findings as to credibility come to be made, upon a false factual premise with respect to a critical document. That false premise is that the letter of 6 March 2007 was not addressed to him. In a narrow sense that is true but, reading the letter as a whole, it is plain on its face that he was an intended addressee insofar as the dispatch of duplicates was concerned. 26 Here too the Minister's reasons are materially grounded upon a false premise. That particular false premise is not, in my view, to be trivialised. The absence of any counselling was a deliberate reference and a link in a chain of reasoning which led to the particular conclusion as to risk. 27 It was alternatively put that the letter was a relevant consideration not taken into account because it was part of a representation. But the representation, which is a relevant consideration, is that given in response to an invitation under s 501CA. That representation had earlier been made, and it is apparent enough from the Minister's reasons that its contents were taken into account. The letter of 30 May 2018, was not a relevant consideration in the sense described by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, in relation to the statutory power being exercised by the Minister. The failure to take it into account is better regarded either as indicative of illogicality or irrationality in reasoning or a denial of procedural fairness. 28 It was also put that the decision was legally unreasonable. The metes and bounds of unreasonableness as a jurisdictional error are not measured by irrationality or illegality alone. So much is apparent from the observations made by the plurality in Minister for Immigration and Border Protection v Li (2013) 249 CLR 332. It may well be possible, additionally, to characterise the error made here as jurisdictional because it was unreasonable, but the bases I have already mentioned are sufficient enough, in my view. 29 What necessarily follows from the foregoing is that the Minister's decision of 31 July 2018 must be quashed. That does not mean, of course, that Mr Johnson must have the benefit of a revocation of the cancellation decision, only that the matter must be remitted to the Minister for further consideration according to law. Neither does the quashing of the Minister's refusal to revoke cancellation have the consequence that Mr Johnson must be released from the immigration detention in which he presently finds himself. That is because the cancellation decision remains in place with its necessary consequence of an obligation that he be placed in immigration detention. 30 Mr Johnson has now been in immigration detention for a lengthy period. It is to be hoped and expected, in terms of public administration, that, subject to observance of procedural fairness requirements, the Minister will approach his task of deciding the matter afresh with due dispatch. 31 Counsel for Mr Johnson, who undertook together the task of advising and representing him directly, did not seek a consequential order for costs. That particular stance serves only to underscore the generosity of time and talent devoted to the interests of justice generally, and of Mr Johnson, in particular, by their appearance. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.