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[2018] FCAFC 151
appellant. Appeal allowed; orders of the primary judge set aside and in lieu thereof the application for judicial review dismissed with costs; respondent to pay the appellant's costs of the appeal.
Mr Buadromo's visa was cancelled because he went to prison for assaulting his partner. He asked the minister to cancel that cancellation, pointing to his three children, long time in Australia, hard time finding work in Fiji and his regret. The minister said no, deciding that the risk Mr Buadromo might offend again and hurt people outweighed everything else. A judge overturned that, saying the minister had not properly thought about some of Mr Buadromo's points and had no good reason for saying he might hurt the community. The Full Court said the first judge was wrong. The minister had thought about the points properly, even if not spelling out every tiny detail, and there was enough in the court papers and reports to let the minister rationally decide there was a risk. The cancellation therefore stands and Mr Buadromo must leave Australia.
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4 cited instruments linked from this judgment.
Mr Buadromo, a citizen of Fiji born in 1970, had lived in Australia since February 1996. In 2014 he was granted a Class BB Subclass 155 Five Year Resident Return visa. He had three children with Ms Turagalailai, aged 11, 9 and 1 at the time of the decision under review. On 11 August 2016 he was convicted of common assault (19 February 2016), assault involving indecency (29 May 2016) and contravening an apprehended violence order. He received a 12-month sentence of imprisonment. On 4 November 2016 the Department cancelled his visa under s 501(3A) of the Migration Act 1958 (Cth) on the basis that he did not pass the character test by reason of a substantial criminal record (s 501(7)(c)). Mr Buadromo was invited to make representations about revocation and did so on 15 November 2016. He was taken into immigration detention upon release from prison on 28 November 2016.
On 11 July 2017 the Parliamentary Secretary (exercising power personally although titled Assistant Minister) decided under s 501CA(4) not to revoke the cancellation. The written statement of reasons recorded that Mr Buadromo failed the character test, weighed the best interests of the children as favouring revocation, acknowledged emotional and financial hardship to family members, noted ties to Australia, considered impediments to return to Fiji, assessed risk of re-offending as low but unacceptable, and concluded that protection of the Australian community outweighed all other considerations.
Mr Buadromo commenced judicial review under s 39B of the Judiciary Act 1903 (Cth). The primary judge (Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592) upheld two grounds: first, that the Parliamentary Secretary had failed to give proper, genuine and realistic consideration to three aspects of the representations (prospects of employment and support in Fiji, explanations for earlier tax offences and stalking, and claims of remorse); second, that the finding at paragraph [57] that further violent offending could result in physical harm to members of the Australian community was unsupported by evidence and irrational. The primary judge set the decision aside and remitted the matter.
The Minister appealed. The Full Court (Besanko, Barker and Bromwich JJ) allowed the appeal, set aside the primary judge's orders, dismissed the judicial review application with costs and ordered Mr Buadromo to pay the costs of the appeal. The Court held that the Parliamentary Secretary had engaged in the required active intellectual process, that explicit findings on every discrete claim were not required, that many claims were subsumed or implicitly addressed, and that the risk finding was rationally open on the sentencing remarks, pre-sentence report and the nature of the offences.
The Full Court began with the statutory text. Section 501CA(4) empowers revocation if the person has made representations and the Minister is satisfied the person passes the character test or there is another reason the original decision should be revoked. Representations are therefore a mandatory relevant consideration, but only as a whole (citing Robertson J in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [55]-[56], approved at [41]). Individual assertions inside the representations do not each attract that status.
The Court then examined what "proper, genuine and realistic consideration" (Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457) actually demands. Drawing on Minister for Immigration and Citizenship v SZJSS [2010] HCA 48, Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, the Court emphasised that the epithet must not slide into merits review. Consideration requires an active intellectual process (Tickner v Chapman [1995] FCA 987 at 462 per Black CJ, cited at [42]), but does not compel a line-by-line refutation of every contention or an express finding on every factual assertion. A claim may be subsumed in a finding of greater generality, implicitly rejected, or put to one side on the basis that even if true it would not alter the outcome ([46]).
The primary judge's central error was said to lie in paragraph [42] of his Honour's reasons, where he treated the absence of an express finding that Mr Buadromo's claim of impossibility of employment in Fiji was factually meritorious as demonstrating a failure to complete the assessment. The Full Court rejected any such rule. At [55]-[60] the Court examined the Parliamentary Secretary's reasons at [36]-[42]. The decision-maker had recorded the claim, noted family in Fiji who had previously relied on Mr Buadromo, found that mental and physical health would be affected, found likely hardship in readjustment but that family support was available, found that work skills "may help him in gaining employment in Fiji" ([41]), and found that the children would suffer financial hardship if Mr Buadromo were returned. These passages were held to constitute an active intellectual process that implicitly rejected absolute impossibility while accepting that financial support from Australia would cease. The children's inability to afford visits was likewise subsumed in the broader findings of financial and emotional hardship and the best-interests assessment.
Similar reasoning applied to the tax offences and stalking matter. The Parliamentary Secretary referred to them at [47]-[49] only as part of the criminal history. When assessing risk to the community the focus was exclusively on the 2016 violent offences, the breach of the apprehended violence order, the sentencing judge's rejection of "miscommunication", the pre-sentence report and the lack of insight. The earlier non-violent matters played no part in the ultimate risk calculus. There was therefore no obligation to make findings on Mr Buadromo's explanations for them ([62]-[68]).
On remorse, the Full Court read [53]-[58] as a whole. The Parliamentary Secretary accepted that remorse had been expressed and that it was genuine, but weighed it against the absence of prior violent offending over 19 years, the lack of insight at sentencing, the medium-to-low risk assessment, and the fact that rehabilitation efforts had not been tested in the community. That balancing exercise was adequate ([69]-[71]).
The separate irrationality ground was dealt with at [72]-[75]. The primary judge had isolated the phrase "physical harm to members of the Australian community" and said nothing in the material suggested risk beyond the former partner. The Full Court disagreed. The two assaults, one in breach of an order, the sentencing judge's emphatic rejection of any misunderstanding, the pre-sentence report's assessment of low-to-medium risk without limiting it to one person, and ordinary inference that a person with little insight into domestic violence may pose risk to future partners or others, supplied probative material. Citing Minister for Immigration and Multicultural Affairs v SGLB [2004] HCA 32 and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, the Court reiterated that the question is not whether the court would have reached the same view but whether a rational decision-maker could do so. The finding was open.
The obligation to give reasons under s 501G(1)(e) and s 25D of the Acts Interpretation Act 1901 (Cth) was held not to enlarge the substantive duty of consideration. Absence of an express finding may sometimes indicate the matter was not considered material (Yusuf at [69]), but here the reasons were comprehensive and the claims had been addressed ([47]-[48]).
Before this decision, the law on what "proper, genuine and realistic consideration" required in the s 501CA(4) context was unsettled in its application. Khan (1987) had introduced the phrase in a policy-fettering case. It was picked up in many migration authorities but the High Court in SZJSS (2010) warned that, taken out of context, the words could encourage merits review. Cases such as Carrascalao (2017) and BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 had emphasised the need for an active intellectual process, while WAEE (2003) and Yusuf (2001) made clear that reasons need not deal with every piece of evidence or contention. The obligation to give reasons under s 501G was understood to incorporate s 25D of the Acts Interpretation Act (King v Minister for Immigration and Border Protection [2014] FCA 766; Dunn v Minister for Immigration and Border Protection [2016] FCA 489), but the precise interaction between the duty to consider and the duty to explain remained contested.
This judgment clarifies and tightens the law in three respects. First, it confirms that representations are mandatory only as a whole; discrete factual assertions inside them are not separately mandatory (approving Goundar). Second, it rejects any proposition that proper consideration always requires an express finding accepting or rejecting each claim; subsumption and implicit reasoning suffice. Third, it reiterates a robust test for irrationality that protects the decision-maker's evaluative role provided a logical pathway exists on the probative material.
After the decision, decision-makers under s 501CA(4) may be more confident that reasons which record claims, make broader findings that necessarily engage with them, and show weighing of competing considerations will survive review. Primary judges are directed to avoid scrutinising reasons "with an eye keenly attuned to error" (WAEE cited at [49]) and to resist the temptation to equate absence of an explicit finding with absence of consideration. The decision reinforces that the judicial review task is supervisory, not a re-weighing of protection of the community against best interests of children.
At [41]: "I also consider Mr BUADROMO has some work skills which may help him in gaining employment in Fiji."
Plain English: The minister acknowledged that Mr Buadromo is not without skills and that those skills give him a realistic chance of getting a job in Fiji. This directly engages with, and implicitly rejects, the claim that finding work would be "impossible".
At [57]: "Although I accept that Mr BUADROMO has no prior violent or sexual offending and has expressed remorse for his offending conduct against his former partner, I also consider that at the time of sentencing he lacked insight into his offending, was assessed as a medium to low risk, and that in the time since, his rehabilitative efforts have not yet been tested in the community. I therefore find there is a likelihood that Mr BUADROMO will re-offend, albeit a low likelihood."
Plain English: Yes, he says he is sorry and he has no old violence on his record, but he still didn't understand what he did wrong when sentenced, the experts thought he was a medium-to-low risk, and we haven't seen whether he has really changed because he has been locked up. So I think there is still a chance he will do it again, though not a high chance. The minister is balancing acceptance of remorse against countervailing factors rather than ignoring the claim.
At [46]: "A finding of fact may not be required if the claim or issue is irrelevant or if it is subsumed within a claim or issue of greater generality or, to use an example advanced by the appellant in the course of submissions in this case, even assuming fact or proposition A, I (the decision-maker) do not accept that fact or proposition B follows."
Plain English: You do not have to tick off every single thing a person says with a separate yes or no. Sometimes the big finding already covers the small one, or you can say "even if what you say is true, it doesn't change my mind about the risk".
At [75]: "It is important to remember that the question is not whether a court balancing the evidence would have reached the same conclusion as the Parliamentary Secretary, but rather, whether there was a basis for the conclusion in the probative material and the conclusion was not otherwise illogical or irrational."
Plain English: The judge is not there to decide the case again on the merits. The only question is whether the minister had some real evidence and whether the thinking makes logical sense. Disagreement with the weight given to evidence is not the same as jurisdictional error.
This precedent is triggered whenever a decision-maker under s 501CA(4) (or analogous non-compellable powers) is said to have failed to give proper, genuine and realistic consideration to representations. It applies with particular force where the applicant alleges that the absence of an express finding on a particular factual assertion (employment prospects, explanation for past conduct, genuineness of remorse, risk to specific classes of victims) demonstrates jurisdictional error. It is engaged when reasons record the claim, make related findings of greater generality (financial hardship to children, availability of support in home country, overall risk assessment) and show that the decision-maker has weighed the claim in the ultimate balance.
The irrationality limb is triggered where a risk finding is challenged on the basis that past offending was confined to one victim or one relationship. The decision stands for the proposition that sentencing remarks, pre-sentence reports that do not expressly limit risk, and the inherent nature of domestic violence can rationally support a finding that future partners or others in the community remain at risk.
It is not confined to visa cancellation cases; the principles stated at [41]-[49] about mandatory considerations, the limits of the duty to make findings, and the proper approach to reasons are of general application in migration and administrative law.
Although the judgment is from September 2018, its principles have been applied in subsequent Full Court and single-judge decisions as authoritative on the content of the consideration obligation. The statements at [41] that representations are mandatory only as a whole have been followed when applicants attempt to elevate every sentence in a personal statement into a separate mandatory consideration. The clarification at [46] that findings are not required on every claim has been cited to reject challenges based on absence of explicit acceptance or rejection of particular assertions about hardship or remorse.
The Court's reading of the Parliamentary Secretary's reasons as a whole, rather than isolating individual sentences, has been treated as an application of the WAEE principle against overly critical scrutiny. Later courts have cited the decision for the proposition that implicit findings or findings of greater generality can discharge the duty, especially in protection-of-the-community assessments where risk is not mathematically quantifiable.
The irrationality analysis at [72]-[75] has been followed in cases where applicants argue that risk findings lack an evidentiary foundation once it is accepted that past violence was directed only at an intimate partner. Courts have treated the reasoning that future partners may be at risk, and that pre-sentence reports speaking of general re-offending risk supply the logical bridge, as binding.
No subsequent court has doubted the core holdings. The decision is routinely cited alongside Carrascalao and BCR16 as setting the current metes and bounds of the "proper, genuine and realistic consideration" test in the visa-cancellation context.
The judgment expressly left open the question whether the word "may" in s 501CA(4) creates a residual discretion after the decision-maker is satisfied there is "another reason" for revocation, noting the divergence between Gaspar, Marzano and the obiter remarks in Falzon v Minister for Immigration and Border Protection [2018] HCA 2. That issue therefore remains unresolved at Full Court level.
The Court did not decide the precise degree of granularity required when a representation contains a claim that is said to be "critical" or "dispositive". While it rejected any rule requiring a finding on every claim, the boundary between a claim subsumed in a broader finding and a claim so central that it must be addressed expressly is not exhaustively mapped.
The interaction between the duty to consider and the duty to give reasons under s 501G continues to be fact-sensitive. Although the judgment states that the reasons obligation does not enlarge the consideration duty, it leaves room for argument in cases where the reasons are so elliptical that the only available inference is that a particular representation was overlooked.
Finally, the decision does not address how the principles apply when the decision-maker is a delegate rather than a Minister or Assistant Minister, or when the volume of material before the decision-maker is significantly greater. Those factual variations may still give rise to debate about whether an active intellectual process has occurred.
Most practitioners still labour under the misapprehension that if the reasons do not contain the words "I find that the applicant's claim X is accepted/rejected" then the decision-maker has failed to engage. This judgment is a powerful corrective: the Court repeatedly upheld the decision even though the Parliamentary Secretary never used the phrase "I reject the claim that it will be impossible to find work". What mattered was that the reasons showed the claim had been noticed and that related findings necessarily answered it. Another gotcha is the belief that a risk finding must be limited to the precise victim of past offences. The Full Court makes clear that sentencing remarks and pre-sentence reports speaking generally of re-offending risk can rationally support a broader community-harm conclusion. Decision-makers who copy and paste generic paragraphs without engaging with the individual's specific representations remain at risk, but those who record the claims, make targeted findings and show weighing are now well protected by this authority. The case also demonstrates the danger of primary judges sliding into merits review by demanding a level of factual precision that the statute and authorities simply do not require.
National Practice Area: Administrative and Constitutional Law and Human Rights
Counsel for the Appellant: Mr SB Lloyd SC with Mr BD Kaplan
Counsel for the Respondent: Ms KA Stern SC with Ms C Palmer
BETWEEN: MINISTER FOR HOME AFFAIRS Appellant
AND: LAGI TAMASO BUADROMO Respondent
JUDGES: BESANKO, BARKER AND BROMwich JJ DATE OF ORDER: 14 September 2018
Introduction 1 This is an appeal by the Minister for Home Affairs from orders made by a judge of this Court on 21 December 2017. The primary judge made an order setting aside a decision of the Assistant Minister for Immigration and Border Protection (Assistant Minister) made on 11 July 2017 and an order remitting the matter to the Assistant Minister for redetermination in accordance with law (Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592). The Assistant Minister's decision was made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act) and was a decision not to revoke a decision to cancel Mr Buadromo's Resident visa. 2 Although the decision-maker used the title of Assistant Minister for Immigration and Border Protection, he is, in fact, designated as Parliamentary Secretary under the Ministers of State Act 1952 (Cth). He personally exercised the power in s 501CA of the Act not to revoke the earlier decision to cancel Mr Buadromo's Resident visa. 3 Mr Buadromo is a citizen of the Republic of Fiji. He was born in October 1970. The primary judge said that he normally resided in Australia after February 1996. On 4 December 2014, he was granted a Class BB Subclass 155 Five Year Resident Return visa. Mr Buadromo had a relationship with a Ms Turagalailai and had three children, aged at the time of the Parliamentary Secretary's decision on 11 July 2017, 11 years, 9 years and 1 year respectively. 4 On 11 August 2016, Mr Buadromo was convicted of common assault, assault involving indecency and contravening an Apprehended Violence Order. He was sentenced to a 12 month term of imprisonment. The conviction for common assault related to an offence committed on 19 February 2016 which led to the Apprehended Violence Order, and the assault involving indecency was committed on 29 May 2016. 5 On 4 November 2016, the Department of Immigration and Border Protection advised Mr Buadromo that his visa had been cancelled under s 501(3A) of the Act. The Department also advised Mr Buadromo that he had an opportunity to make representations about the decision to cancel his visa. On 15 November 2016, Mr Buadromo made representations in response to the invitation which he received. 6 Mr Buadromo was taken into immigration detention on 28 November 2016 when he was released from criminal custody. He has remained in immigration detention ever since. 7 As we have said, on 11 July 2017, the Parliamentary Secretary, acting under s 501CA(4) of the Act, decided not to revoke the original decision to cancel Mr Buadromo's visa. 8 On 10 August 2017, Mr Buadromo filed an application for judicial review under s 39B of the Judiciary Act 1903 (Cth) of the Parliamentary Secretary's decision under s 501CA(4) of the Act not to revoke the original decision to cancel his visa.
The Parliamentary Secretary's written reasons 9 We will come to address particular parts of the Parliamentary Secretary's written reasons later in these reasons. A broad overview of the written reasons is as follows. 10 The Parliamentary Secretary was satisfied that Mr Buadromo did not satisfy the character test as defined by s 501 of the Act. He turned to consider whether there was another reason why the original decision to cancel Mr Buadromo's visa should be revoked. He referred to Mr Buadromo's representations and documents. 11 The Parliamentary Secretary concluded that it was in the best interests of Mr Buadromo's children that the original decision be revoked. He referred to the need for Mr Buadromo's children to be "parented" and emotionally and financially supported by Mr Buadromo. 12 The Parliamentary Secretary concluded, in the context of his consideration of the strength, nature and duration of Mr Buadromo's ties to Australia, that Mr Buadromo's immediate family in Australia would experience emotional and financial hardship if the cancellation of his visa was not revoked and that he had made a positive contribution to the community for 11 years. He also recognised the effect of not revoking the cancellation decision for family members in Australia. 13 The Parliamentary Secretary then turned to consider the impediments (as he put it) that Mr Buadromo will face if removed from Australia to his home country of Fiji in establishing himself and maintaining basic living standards. The relevant parts of this topic are dealt with below. 14 The Parliamentary Secretary considered the protection of the Australian community and, in that context, Mr Buadromo's criminal conduct and the risk that he would re-offend. Again, the relevant parts of this topic are dealt with below. 15 The Parliamentary Secretary then summarised his conclusions on individual topics and expressed the overall conclusion that he was not satisfied that there is another reason why the original decision should be revoked. He described how he had carried out the balancing process in the following passage (at [65]): In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr BUADROMO represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children as a primary consideration, and any other considerations as described above. These include his lengthy residence and bonds, employment, volunteer/charity and familial to Australia, and the hardship Mr BUADROMO, his family and social networks will endure in the event the original decision is not revoked.
The Primary Judge's Reasons 16 The primary judge set out the relevant statutory provisions and it is convenient for us to do the same at this point. 17 Section 501 of the Act relevantly provides as follows: Refusal or cancellation of visa on character grounds Decision of Minister or delegate - natural justice applies (1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. (2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. Decision of Minister - natural justice does not apply (3) The Minister may: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person; if: (c) the Minister reasonably suspects that the person does not pass the character test; and (d) the Minister is satisfied that the refusal or cancellation is in the national interest. (3A) The Minister must cancel a visa that has been granted to a person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or (ii) paragraph (6)(e) (sexually based offences involving a child); and (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. (3B) Subsection (3A) does not limit subsections (2) and (3). (4) The power under subsection (3) may only be exercised by the Minister personally. (5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A). Character test (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or … Otherwise, the person passes the character test. Substantial criminal record (7) For the purposes of the character test, a person has a substantial criminal record if: … (c) the person has been sentenced to a term of imprisonment of 12 months or more; or … 18 Section 501CA of the Act relevantly provides as follows: Cancellation of visa - revocation of decision under subsection 501(3A) (person serving sentence of imprisonment) (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person. (2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers: (a) would be the reason, or a part of the reason, for making the original decision; and (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member. (3) As soon as practicable after making the original decision, the Minister must: (a) give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. (5) If the Minister revokes the original decision, the original decision is taken not to have been made. … 19 Section 501G(1) of the Act relevantly provides as follows: Refusal or cancellation of visa - notification of decision (1) If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B, 501BA, 501CA or 501F to: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person; or (ba) not revoke a decision to cancel a visa that has been granted to a person; the Minister must give the person a written notice that: (c) sets out the decision; and (d) specifies the provision under which the decision was made and sets out the effect of that provision; and (e) sets out the reasons (other than non-disclosable information) for the decision; and … 20 Two matters about these sections should be noted at this point. 21 First, there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word "may" in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view: Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337 at [38] per North ACJ; Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548 at [31] per Collier J with whom Logan and Murphy JJ agreed; but see Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 93 ALJR 201 at [74] per Gageler and Gordon JJ. This Court does not need to consider and resolve this issue because it does not arise in a way which bears upon the outcome of the appeal. 22 Secondly, as the primary judge correctly noted, the obligation in s 501G(1)(e) to provide "reasons" carries with it an obligation to set out also the findings on material questions of fact together with a reference to the evidence upon which such findings were made. This obligation follows from the terms of s 25D of the Acts Interpretation Act 1901 (Cth) (see King v Minister for Immigration and Border Protection [2014] FCA 766; (2014) ALD 305 at [36]-[37] per Flick J; Dunn v Minister for Immigration and Border Protection [2016] FCA 489 at [17] per North ACJ). 23 Mr Buadromo's originating application was amended at the start of the hearing before the primary judge. In light of the primary judge's decision, two grounds of the amended originating application are relevant. They are as follows: 3. The grounds for the application are as follows: a) … b) the Assistant Minister failed to make findings as to matters raised by the applicant in his representations as to the reason why the decision should be revoked, and for that reason: i) … ii) … iii) failed to give proper, genuine and realistic consideration to the applicant's representations and/or iv) failed to conduct the task required under the Act. c) the Assistant Minister concluded that the applicant had, at the time of the decision, a likelihood of re-offending in circumstances in which: i) there was no evidence to that effect before the Assistant Minister; and ii) that conclusion was irrational, not based on findings or inferences of fact supported by logical grounds and/or not reasonably open on the material before the Assistant Minister. … Before the primary judge and before this Court, grounds 3 b) (iii) and (iv) were treated as, in effect, raising the same ground of challenge. 24 Early in his reasons, the primary judge noted that the Parliamentary Secretary had accepted Mr Buadromo's submission that it would be in the best interests of his three children that the cancellation of his visa be revoked. The Parliamentary Secretary said the following (at [21] and [22] in his reasons): I am cognisant that Mr BUADROMO plays an active parental role in his children's daily life, they share a close bond, that he needs to be here to work and financially support them, and that they will find it very difficult if he is to return to live in Fiji. I find that the three children will suffer emotional and financial hardship should Mr BUADROMO be removed from Australia. I find that it is in the best interests of the three children that I revoke the original decision to cancel Mr BUADROMO's visa, to enable them to be parented and emotionally and financially supported by Mr BUADROMO. I take into account that the children may also need to rely on parenting and care by Mr BUADROMO if Ms Turagalailai continues to suffer from post-natal depression. 25 The primary judge said that the Parliamentary Secretary had referred to matters other than the best interests of Mr Buadromo's children and the question was whether the consideration required by law was given to those matters, or whether the Parliamentary Secretary's reasons exposed "jurisdictional error". 26 After referring to a number of principles which the primary judge considered were relevant to his approach to the Parliamentary Secretary's reasons, his Honour referred to particular parts of the Parliamentary Secretary's reasons. It is not necessary for us to identify the details of the primary judge's consideration of those matters at this point in our reasons. 27 The primary judge then turned to consider together the two grounds of review to the effect that the Parliamentary Secretary had failed to give proper, genuine and realistic consideration to Mr Buadromo's representations and had failed to conduct the task required under the Act. 28 The primary judge expressed his conclusions and then provided his reasons for those conclusions. His Honour concluded that the Parliamentary Secretary had not given proper, genuine and realistic consideration to the issues presented for resolution. 29 With respect to a number of matters, the primary judge said that the Parliamentary Secretary had "noted" the matter. His Honour said that that was not sufficient and that what the Parliamentary Secretary was required to do was to take "the further step of making an assessment as to whether what was being put had factual merit" or "engage in some assessment of the merit of that which was being put forward" (at [42]). The primary judge said that a task required under the Act includes that imposed by s 501G(1)(e) (i.e., to set out the reasons for the decision) and that obligation reinforced the necessity for the Parliamentary Secretary to complete his assessment by making findings of fact. The passage in which his Honour made these points is important because it was the focus of the appellant's attack on the primary judge's reasons. It is convenient to set it out in full (at [42]): The decision of the Assistant Minister, it is concluded, has been made without findings of fact being made in respect to a number of issues which formed part of the decision-making process. "Proper, genuine and realistic consideration" of the issues presented for resolution required the Assistant Minister to go beyond merely "noting" what Mr Buadromo had been putting forward for consideration; what was required of the Assistant Minister was the taking of the further step of making an assessment as to whether what was being put forward had factual merit. That assessment process may remain a matter entrusted to the Assistant Minister to resolve; but the Assistant Minister could not halt that assessment process at the outset by merely "noting" what had been put before him and not proceeding to engage in some assessment as to the merit of that which was being put forward. The requirement imposed by s 501G(1)(e), which is a "task required under the Act", only reinforces the necessity for the Assistant Minister to complete his assessment by making findings of fact. In the face of s 501G, "the Court may draw certain inferences from what is not expressly set out in the Reasons as much as it may draw an inference from that which is expressly set out": Stevens v Minister for Immigration and Border Protection [2016] FCA 1280 at [44], (2016) 153 ALD 346 at 358 to 359 per Charlesworth J. The absence of an express finding of fact may thus assist in reaching a conclusion that no finding was implicitly made. 30 The primary judge said that he had reached his conclusions with considerable diffidence because of the difficulties in applying the proper, genuine and realistic consideration test, and the dangers, in applying the test, of sliding into impermissible merits review, and because it was apparent that, as to certain matters, the Parliamentary Secretary had given proper, genuine and realistic consideration to the matter. 31 The primary judge identified three areas or topics in respect of which he considered that the Parliamentary Secretary had not given proper, genuine and realistic consideration to Mr Buadromo's claims. Those matters engaged grounds 3 b) (iii) and (iv) of the amended originating application for judicial review and are as follows.
The claim by Mr Buadromo that if returned to Fiji he would find it impossible to find work and provide for his family 32 The Parliamentary Secretary's written reasons contain the following: [36] I note that Mr BUADROMO has two brothers living in Fiji. [37] Mr BUADROMO stated his relatives in Fiji cannot support him as they often cannot look after themselves and at times relied on his financial support from Australia in the past. [38] Mr BUADROMO said that it will be 'impossible' for him to find work in Fiji to provide for the family; it will be hard for him to cope living there alone without his family. Mr BUADROMO's family will not join him in Fiji as their life is better living in Australia; they cannot afford to visit him in Fiji. It will affect Mr BUADROMO's mental and physical health should he be sent back to Fiji. [39] I take note that Ms Turagalailai will struggle financially should Mr BUADROMO be returned to Fiji. [40] I recognised that Mr BUADROMO is 46 years of age, and has not returned to Fiji for a long time and therefore may no longer be familiar with the culture or language. I note that Mr BUADROMO has some family in Fiji, and although he will likely suffer hardship in readjusting to life in Fiji, he may seek support from his family to assist him to readjust and resettle in Fiji. [41] I also consider Mr BUADROMO has some work skills which may help him in gaining employment in Fiji. [42] Mr BUADROMO has not identified any health issues. However, should Mr BUADROMO require medical or other services in Fiji, he will have access to those as available to other citizens in Fiji. I recognise that any available services may not be of the same high standards as those equivalent services in Australia. 33 The primary judge said that it was not sufficient for the Parliamentary Secretary to note what Mr Buadromo had said would be his difficulties if he returned to Fiji as the Parliamentary Secretary had done in [36]-[38]. The Parliamentary Secretary was required, for example, to make a finding as to whether Mr Buadromo would be able to find work and provide for his family. As we read his Honour's reasons, he concluded that the Parliamentary Secretary made a finding that Mr Buadromo's mental and physical health would be affected should he be sent back to Fiji and (arguably) that Mr Buadromo would likely suffer hardship in readjusting to life in Fiji. However, those findings fell short, according to the primary judge, of addressing Mr Buadromo's claim that it will be impossible for him to find work in Fiji. 34 The primary judge said that the same comment may "possibly" be made in relation to Mr Buadromo's claim that if he is returned to Fiji, his children will not be able to afford to come to Fiji. His Honour expressed his conclusion by using the word, "possibly" because he said the claim is "to some extent, although albeit not completely" addressed by the findings in [21] and [22] of the Parliamentary Secretary's reasons. We have already set out those paragraphs (at [24] above)
The convictions for tax offences and the fine and bond for stalking 35 The Parliamentary Secretary's written reasons contain the following: [47] Mr BUADROMO's criminal history shows that from 2004 - 2007 he was convicted with driving offences, non-compliance with taxation law and stalking. Penalties varied from fines between $400-5,500, license disqualification for 2 years, and s. 9 bond of 12 months. [48] Mr BUADROMO provides an explanation in relation to the tax offences stating that he was not aware he had to pay his own tax because he used an ABN, as he though the employer was responsible for these. He has learnt from this mistake for the future. He states that the stalking was a result of his partner's parents making a complaint, and they later reconciled their differences. [49] I find that the sentences Mr BUADROMO received are a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy. I have considered that the court viewed the domestic violence offending and I note that the sentence of imprisonment given in 2016 was for his first. 36 The primary judge found that the Parliamentary Secretary failed to make a finding as to whether he accepted Mr Buadromo's explanation as to the circumstances surrounding the tax offences and whether Mr Buadromo was stalking his former partner, or whether the complaint was unsubstantiated. His Honour said that he did not consider the Parliamentary Secretary's reasons at [53]-[56] inclusive (which are set out below at [37]) amounted to findings as to those matters.
Mr Buadromo's expression of remorse 37 The Parliamentary Secretary's written reasons contain the following: [53] I have considered Mr BUADROMO's statement that he has now accepted Ms Turagalailai's decision to split up and he 'sincerely regret' the way he treated her without respect, and that he feels shame. [54] Mr BUADROMO stated he is remorseful and will never re-offend and he has learnt to 'better ways to solve family problems'. [55] I note the judge's comment in 2016 that Mr BUADROMO had no violent offending in the past 19 years. [56] I also take note that Ms Turagalailai has provided a letter supporting Mr BUADROMO stating he is now remorseful. [57] Although I accept that Mr BUADROMO has no prior violent or sexual offending and has expressed remorse for his offending conduct against his former partner, I also consider that at the time of sentencing he lacked insight into his offending, was assessed as a medium to low risk, and that in the time since, his rehabilitate efforts have not yet been tested in the community. I therefore find there is a likelihood that Mr BUADROMO will re-offend, albeit a low likelihood. I consider that further offending of a violent nature by Mr BUADROMO could result in physical harm to members of the Australian community. I am cognisant that Mr BUADROMO's rehabilitation is yet to be tested in the community. [58] I consider that should Mr BUADROMO reoffend in a similar manner, it could result in physical/psychological harm to members of the Australian community. 38 The primary judge said that the Parliamentary Secretary was required to do more than "note" the claim made by Mr Buadromo that he will not re-offend (a matter also noted by the Parliamentary Secretary in [43] of his reasons) and that Mr Buadromo's claim has been considered. The Parliamentary Secretary was required to reach a state of satisfaction about whether the statements made by Mr Buadromo reflected a genuine current acceptance on his part that he treated his former partner "without respect" and that he was genuinely "remorseful" and genuine in his conviction that he will never re-offend. His Honour said that a finding of fact that Mr Buadromo was now "remorseful" and "now accept[s]" his former partner's decision "to split up" may be relevant to an assessment of Mr Buadromo's prospects of re-offending. The primary judge noted that, although the Parliamentary Secretary had made a finding about the likelihood of Mr Buadromo re-offending, he had not addressed "related claims" undoubtedly relevant to that issue, such as his claim that he accepted his former partner's decision "to split up". 39 The primary judge addressed a submission made on behalf of the Parliamentary Secretary that he had made implicit findings of fact. He rejected that submission and then said the following (at [50]): It is the failure to make such findings, and the fact that such findings are "missing" from the reasons provided, which exposes the incompleteness of the Assistant Minister's assessment of the claims made by Mr Buadromo and the fact that he did not give "proper, genuine and realistic consideration" to these matters.
Physical harm to the Australian community in the future 40 The primary judge then identified a matter which he described as "a separate concern" arising in connection with [57] of the Parliamentary Secretary's reasons. This matter was said to engage ground 3 c) of the amended originating application for judicial review. In [57], the Parliamentary Secretary found that "further offending of a violent nature by Mr BUADROMO could result in physical harm to members of the Australian community". The primary judge said that an assessment as to the prospect of further offending, vis-a-vis his wife, was one matter; assessment of the prospect of offending and inflicting physical harm on other members of the Australian community was an entirely different matter. The primary judge said that there was nothing before the Parliamentary Secretary, and certainly nothing in the findings and reasons given by him, which supported any contention that Mr Buadromo posed any threat to anyone other than (potentially) his former partner. The primary judge concluded that, in those circumstances, the Parliamentary Secretary's assessment was devoid of evidence and an assessment which had no rational foundation. He concluded that this separate concern only provided further reasons to question the reasoning process pursued by the Parliamentary Secretary. He described that reasoning process as fundamentally flawed by reason of jurisdictional error.
Analysis 41 The starting point is the terms of s 501CA(4) of the Act. One of the matters which engages the power to revoke a prior cancellation is that the person given the invitation under s 501CA(3) by the Minister has made representations to the Minister. Although the subsection does not say so in express terms, the representations must be considered by the Minister. They are, as the Minister accepted, a mandatory relevant consideration (Tickner v Chapman [1995] FCA 987; (1995) 57 FCR 451 (Tickner v Chapman)). However, they are a mandatory relevant consideration as a whole and not as to the individual statements contained in the representations. In Goundar v Minister for Immigration and Border Protection [2016] FCA 1203, Robertson J said (at [55]-[56]): It is not necessary to determine the issue of whether the applicant's representation as to the risk of retribution was a mandatory relevant consideration. That conclusion does not follow from Picard. It is correct to say that in that case the learned judge stated at [42] that if, in making representations, the applicant provided information to the Minister, relating to his or her personal circumstances, and that information was critical and relevant to the applicant's case the Minister was bound to consider it. As noted in BCR16 at [76], those observations in Picard were made in the context of procedural fairness obligations owed by the Minister under s 501CA(4). In any event I do not read Picard at [42] as standing for the proposition that each statement in the representation is a mandatory relevant consideration. 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. As presently advised, I would distinguish Htun at [42] on the basis that both the text and context of the statutory provisions are quite different. We respectfully agree with those observations. 42 A mandatory relevant consideration must be addressed or considered. The task the decision-maker is required to carry out has been described in various ways in the authorities. In Tickner v Chapman, Black CJ (at 462) described the task as involving an active intellectual exercise directed at (in that case) a representation or submission (see also Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (Carrascalao) at [44]-[46]). 43 In 1987, Gummow J, sitting as a judge of this Court, said, in the context of an allegation that the decision-maker had applied a policy without regard to the merits, that proper, genuine and realistic consideration should be given to the merits (Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 (Khan)). 44 In Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164, the High Court referred to the decision in Khan and made the point by reference to the reasons for judgment of Basten JA (with whom Allsop P agreed) in Swift v SAS Trustee Corporation [2010] NSWCA 182; (2010) 6 ASTLR 339 at [45] that taken out of context and without understanding their provenance, the epithets are apt to encourage a slide into impermissible merits review (see also Carrascalao at [32]). The Court also made the point (at [33]-[34]) that the weighing of various pieces of evidence was a matter for the Tribunal (in that case) (Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at 580 [197] per Gummow and Hayne JJ) and said that in the case before the Court, the Federal Court's conclusion that the Tribunal had not made "a proper, genuine or realistic evaluation" of the evidence to which it said it accorded no weight was merely registering emphatic disagreement with the Tribunal's assessment of factual matters. 45 In BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456, Bromberg and Mortimer JJ at [12] spoke of considering the relevant matter in a meaningful way. 46 Insofar as the primary judge is suggesting in [42] of his reasons (set out above at [29]) that a decision-maker is required to make a finding of fact with respect to every claim made or issue raised by an applicant, we do not agree. A finding of fact may not be required if the claim or issue is irrelevant or if it is subsumed within a claim or issue of greater generality or, to use an example advanced by the appellant in the course of submissions in this case, even assuming fact or proposition A, I (the decision-maker) do not accept that fact or proposition B follows. These are only examples and it is not possible to be comprehensive. 47 We also agree with the other criticism of the primary judge's reasoning in [42] of his reasons advanced by the appellant. The obligation to give reasons does not enlarge or diminish the scope of the obligation to consider a mandatory relevant consideration, although clearly it may bear upon a decision as to whether the latter obligation has been carried out (Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 at [46] per Gleeson CJ, Gummow and Heydon JJ; at [55] per McHugh J). As the High Court made clear in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [5], [10] per Gleeson CJ; at [69] per McHugh, Gummow and Hayne JJ, a failure to set out a finding on some question of fact may indicate that no finding was made on the matter and that it was not considered material. 48 Generally, an obligation to give reasons does not require a "line-by-line refutation of the evidence of the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal". The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 at [65]-[67] per McHugh J). 49 It is generally not essential for a tribunal or other primary decision-maker to refer to every piece of evidence or contention advanced by a claimant. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593, the Full Court of this Court said (at [46]-[47]): It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. (see also Australian Energy Regulator v Australian Competition Tribunal (No 2) [2017] FCAFC 79; (2017) 255 FCR 274 at [278]; Carrascalao at [45].) 50 With respect to the ground raising an absence of evidence and the lack of a rational foundation, we refer to the following authorities. 51 In Minister for Immigration and Multicultural Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992, Gummow and Hayne JJ said (at [38]): The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith. To say that a decision-maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction under s 65 of the Act. However, inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error. (Citation omitted.) 52 In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, Crennan and Bell JJ said (at [135]): On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. 53 There are three grounds of appeal. Grounds 1, 2 and 3 a) are to the effect that the primary judge erred in finding that the Parliamentary Secretary had not given proper consideration to the three matters set out in [31]-[39] above. The contention is that the primary judge should have found that Mr Buadromo had not established that the Parliamentary Secretary had not given proper consideration to these matters. The appellant went on to submit that furthermore, or in addition, the primary judge should have found that he had sufficiently addressed the claims. 54 Ground 3 b) is directed to the primary judge's "separate concern". The appellant contends that the primary judge erred in concluding that the Parliamentary Secretary's conclusion that further offending of a violent nature by Mr Buadromo could result in physical harm to members of the Australian community was an assessment devoid of evidence and having no rational foundation.
The claim by Mr Buadromo that if returned to Fiji he would find it impossible to find work and provide for his family. 55 It is not entirely clear whether the primary judge treated the relevant representation as a representation that Mr Buadromo would find it impossible to find work in Fiji or a representation that he would find it impossible to find work in Fiji so as to provide for his family. For reasons we will give, it matters not. In his representation, Mr Buadromo said: It will be hard for me to cope with life in Fiji and its impossible to find a job to suport myself and my partner and our children living over here in Australia. My relatives in Fiji can't suport me for I always support them from here (Australia) for what they need. It will affect my mental and physical health thinking of the wellbeing of my partner and 3 children back here in Australia. (Original formatting retained.) He also gave details of his employment history in his representation. 56 In his reasons, the Parliamentary Secretary recorded as one of the reasons advanced by Mr Buadromo in favour of revoking the original decision to cancel, the following: It will be "impossible" for him to find work in Fiji to provide for the family. (Parliamentary Secretary's reasons at [12]). The Parliamentary Secretary also recorded the fact that he was aware that Mr Buadromo had worked in Australia from 2005-2016 as a medical pathology technician and steel fixer (Parliamentary Secretary's reasons at [31]). 57 The Parliamentary Secretary addressed the effects outside the employment sphere on Mr Buadromo of returning to Fiji. He found that Mr Buadromo's mental and physical health would be affected if he were sent back to Fiji (at [38]) and that he is likely to suffer hardship in readjusting to life in Fiji (at [40]). 58 The Parliamentary Secretary addressed whether Mr Buadromo was likely to find employment in Fiji or sufficient employment in order to provide for his family. He found that Mr Buadromo has some work skills which may help him in gaining employment in Fiji (at [41]). He found that it was in the best interests of Mr Buadromo's children that he revoke the decision to cancel Mr Buadromo's visa and that one of the reasons for this conclusion was that if in Australia, Mr Buadromo could continue to provide financial support for his children and that they would suffer a lack of financial support (at [21]) and financial hardship (at [22]) and [34]) if the cancellation was not revoked. 59 We do not think the Parliamentary Secretary was required to make a precise finding about Mr Buadromo's prospects of obtaining employment in Fiji. He 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. 60 It is true that the Parliamentary Secretary did not make an express finding that Mr Buadromo will or will not find it impossible to obtain work in Fiji and that, in other parts of his reasons, the Parliamentary Secretary used the expression, "I find" in expressing a conclusion (at, for example [21] and 34]). However, as we have said, the Parliamentary Secretary found that Mr Buadromo has some work skills which may help him in gaining employment in Fiji which amounts to a rejection of the suggestion that he will find it impossible to obtain employment in Fiji, and he found that Mr Buadromo's three children will suffer financial hardship if he is removed from Australia which amounts to an acceptance that Mr Buadromo is not likely to be able to provide for his children if he is returned to Fiji. Those findings are not inconsistent. On the one hand, Mr Buadromo may find employment in Fiji, but, on the other, the Parliamentary Secretary has proceeded on the basis that he is unlikely to be able to provide for his family. One might describe the conclusions as "implicit findings", although we would be disposed to conclude that they show that the Parliamentary Secretary has engaged in an active intellectual exercise and considered the representations in a meaningful way. 61 The primary judge's conclusion about the Parliamentary Secretary's approach to the representation that Mr Buadromo's children will not be able to afford to visit him in Fiji is equivocal. It will be recalled that the primary judge said that the same comment may "possibly" be made. It will also be recalled that the Parliamentary Secretary recorded Mr Buadromo's statement that if he returns to Fiji his children will not be able to afford to come to Fiji. It seems to us that this particular matter is subsumed in findings of greater generality made in favour of Mr Buadromo, namely that his children will suffer financial hardship and emotionally if he returns to Fiji and that his ex-partner will struggle financially if that occurs, and sufficiently address this representation. Alternatively, it is subsumed within the more general finding that it is in the best interests of Mr Buadromo's children that the original cancellation be revoked.
The convictions for tax offences and the fine and bond for stalking 62 The appellant's submission is that the reference to these matters was no more than a reference to historical events and that they played no part in his conclusions. 63 The Parliamentary Secretary's reference to Mr Buadromo's criminal conduct appears in the context of his consideration of the need to protect the Australian community, and Mr Buadromo's claim in that context that he would not re-offend. 64 The Parliamentary Secretary starts his consideration of Mr Buadromo's criminal conduct with a reference to the offences for which he was sentenced on 11 August 2016 and that remained his focus as can be seen in [49] which, for convenience, we repeat at this point: I find that the sentences Mr BUADROMO received are a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy. I have considered that the court viewed the domestic violence offending and I note that the sentence of imprisonment given in 2016 was for his first. 65 The conclusion is that the sentences are serious because they involved imprisonment and that is a reference to the offences in respect of which he was convicted on 11 August 2016. The tax convictions and penalties for stalking did not result in sentences of imprisonment. 66 When the Parliamentary Secretary considers what the criminal conduct means in terms of the risk to the Australian community, his focus is again on the offences for which Mr Buadromo received sentences of imprisonment. The Parliamentary Secretary said in [51] which again, for convenience, we repeat at this point: In relation to the indecent assault offence, I note the judge referred to Mr BUADROMO having told the probation officer that there was a miscommunication with Ms Turagalailai at time of offending and he was not sure of the status of their relationship. Mr BUADROMO claimed that he has touched her the same way which was acceptable behaviour to Ms Turagalailai on previous occasions. I note the sentencing judge stated that 'There was no miscommunication.' He noted that Ms Turagalailai had clearly told him that she did not want him in her life anymore and to leave her alone. The judge stated that "Miscommunication is a whitewash and I reject it'. 67 In the next paragraph ([52]), the Parliamentary Secretary refers to the pre-sentence report where it is said that Mr Buadromo displayed little insight into his offending and was a low to medium risk of re-offending. The tax offences and penalties for stalking appear to have played no part in that assessment. It seems clear from [57] that the prior offending, which is relevant to the protection of the Australian community, does not include the tax offences or penalties for stalking. 68 The Parliamentary Secretary did not address Mr Buadromo's explanation for the tax convictions or the substance of the stalking claims. However, he was not required to do that because ultimately, those matters played no part in his decision not to revoke the original decision to cancel Mr Buadromo's visa.
Mr Buadromo's expression of remorse 69 The primary judge held that the Parliamentary Secretary had not given proper, genuine and realistic consideration to Mr Buadromo's claim that he was remorseful in respect of his offending and associated claims and that this was evidenced by the fact that he had not made findings with respect to the claims. 70 We are of the opinion that when [53]-[58] of the Parliamentary Secretary's reasons (set out at [37] above) are read together, as they should be, then the findings in [57], insofar as they relate to remorse, cover the various ways in which that remorse is expressed in the paragraphs leading up to [57]. The question then becomes whether a finding about the claimed remorse was made in [57]. We think such a finding was made in the first sentence and it was that Mr Buadromo had expressed remorse and that that expression of remorse was genuine. However, the expression of remorse had to be balanced against his lack of insight and the fact that efforts to rehabilitate had not been tested in the community. In our opinion, the Parliamentary Secretary addressed these claims adequately and in concluding otherwise, the primary judge erred. 71 On the appeal, there was a suggestion by Mr Buadromo that the Parliamentary Secretary had not made a finding about whether he had insight into his offending. We reject that submission. The Parliamentary Secretary clearly did make a finding based on the sentencing judge's remarks which were, in turn, based on the pre-sentence report.
Physical harm to the Australian community in the future 72 The primary judge concluded that the Parliamentary Secretary's finding that further offending of a violent nature by Mr Buadromo could result in physical harm to members of the Australian community was a finding for which there was no evidence and for which there was no rational basis. He drew attention to the fact that the Parliamentary Secretary had noted that in 2016, the sentencing judge had commented that Mr Buadromo had no violent offending in the past 19 years and that Mr Buadromo's criminal conduct involving violence was directed towards his former partner and no other member of the Australian community. 73 With respect, we think that the primary judge erred in concluding that there was no evidence to support the Parliamentary Secretary's conclusion, or that the conclusion was otherwise illogical or irrational. We are inclined to think that, with respect, his Honour's emphatic disagreement with the Parliamentary Secretary's conclusion has led him to characterise the conclusion as involving jurisdictional error. 74 Mr Buadromo had committed two assaults on his former partner, a common assault on 19 February 2016 and an indecent assault on 29 May 2016. The indecent assault was committed in breach of an Apprehended Violence Order and in circumstances where the suggestion of a miscommunication had been firmly rejected by the sentencing judge. We do not consider that a conclusion that, in these circumstances there was a likelihood, albeit a low likelihood, that Mr Buadromo would re-offend and that future offending of a violent nature could result in physical harm to members of the Australian community is without a basis in probative material, or is otherwise illogical or irrational. It is open to a decision-maker to conclude that future partners and perhaps others are at risk. This conclusion is strengthened when one has regard to the fact that the Parliamentary Secretary also had before him the sentencing judge's remarks which, in turn, referred to a pre-sentence report that stated that Mr Buadromo had little insight into his offending behaviour and was a low to medium risk of offending (i.e., re-offending). That report did not limit the risk of re-offending to Mr Buadromo's former partner. 75 It is important to remember that the question is not whether a court balancing the evidence would have reached the same conclusion as the Parliamentary Secretary, but rather, whether there was a basis for the conclusion in the probative material and the conclusion was not otherwise illogical or irrational. Applying this test, we conclude that the primary judge erred.
Conclusion 76 The appeal must be allowed and the orders of the primary judge set aside. In lieu of those orders, there should be an order that Mr Buadromo's application for judicial review should be dismissed with costs. The respondent should pay the appellant's costs of the appeal. I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Besanko, Barker and Bromwich.
Minister for Home Affairs
Buadromo
(1999) 197 CLR 510
(2003) 236 FCR 593
(2017) 255 FCR 274
(2017) 248 FCR 456
(2017) 252 FCR 352
(2018) 93 ALJR 201
(2017) 250 FCR 548
(2010) 243 CLR 164
(2010) 240 CLR 611
(2004) 78 ALJR 992
(2001) 206 CLR 323
(2000) 74 ALJR 405
(2003) 216 CLR 212
(1995) 57 FCR 451
[2001] HCA 30
Appeal allowed; orders of the primary judge set aside and in lieu thereof the application for judicial review dismissed with costs; respondent to pay the appellant's costs of the appeal.