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[2018] FCAFC 160
appellant. Appeal allowed with costs; primary judge's orders quashing the Minister's decision set aside.
The Full Court of the Federal Court allowed the Minister's appeal and upheld the refusal of Mr Sabharwal's skilled visa. Mr Sabharwal had committed serious alcohol-fuelled offences against police and others. The Minister found a risk he would reoffend because he had not stopped drinking, showed limited insight, and lacked family support. The Court ruled this finding was logical and open on the evidence, including the psychologist's report which actually highlighted ongoing mental health and alcohol issues. The Minister had properly summarised and referred to that report when deciding there was a risk and when weighing community protection against other factors in the discretion. The primary judge had wrongly found jurisdictional error by reading the Minister's reasons too narrowly. The visa refusal stands.
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3 cited instruments linked from this judgment.
Mr Sahil Sabharwal arrived in Australia from India in April 2007 on a student visa and lodged an application for a Skilled (Residence) Class VB visa on 5 November 2009. While that application remained undecided he accumulated a criminal record directly linked to excessive alcohol consumption. In 2012 he was convicted of high-range drink-driving. In August and October 2015 he committed a series of public-order offences, assaults on police, intimidation, stalking and property damage while intoxicated, including vile verbal abuse directed at female officers and threats to rape them and their children. He was sentenced on 28 October 2015 to fines, a 12-month good-behaviour bond requiring drug and alcohol counselling, and 300 hours of community service. The Local Court magistrate expressly found that Mr Sabharwal had a continuing “drinking problem”.
A departmental delegate refused the visa on 15 August 2016 under s 501(1) of the Migration Act 1958 (Cth), being satisfied Mr Sabharwal did not pass the character test in s 501(6)(d)(i) because there was a risk he would engage in criminal conduct if allowed to remain. Mr Sabharwal sought merits review. The Administrative Appeals Tribunal set aside the delegate’s decision on 25 November 2016. The Tribunal accepted that all offending was alcohol-related but found it lacked sufficient expert evidence about Mr Sabharwal’s mental health and alcohol misuse to assess future risk. It remitted the application with a recommendation that an independent psychological or psychiatric report be obtained.
Following remittal the Department invited Mr Sabharwal to provide such a report. He furnished a report dated 11 April 2017 by registered psychologist Ms Claudia Roman. That report recorded Mr Sabharwal’s history of anxiety, depression, social isolation after moving out of his brother’s home, and ongoing mental-health symptoms that might amount to PTSD. Ms Roman recommended continuing psychological treatment, possible reinstatement of antidepressants, and specific alcohol counselling. However the report was prepared on the incorrect premise (supplied by Mr Sabharwal) that he had been abstinent since late 2015; in cross-examination before the Tribunal he had conceded he continued to drink, albeit not to excess.
On 13 July 2017 the Minister personally decided to refuse the visa. The Minister’s 15-page statement of reasons accepted that Mr Sabharwal’s offending was linked to alcohol ([67]), noted that he had not in fact ceased drinking despite contrary claims made to the Tribunal and to Ms Roman, recorded limited insight and only “some progress” toward rehabilitation, and found that the absence of immediate family support in Sydney heightened risk. The Minister summarised Ms Roman’s report in six detailed paragraphs ([60]-[65]), expressly relied on it when concluding there was a risk of criminal conduct ([68]), and then turned to the discretion. Under headings that included protection of the Australian community and risk to the community the Minister referred back to the earlier risk finding ([77]) and ultimately decided that community protection outweighed countervailing considerations, including the best interests of Mr Sabharwal’s two Australian-citizen nieces.
Mr Sabharwal obtained judicial review. The primary judge quashed the decision on two grounds: first, that the Minister’s risk finding at [67] was conditional, illogical and failed to address the probability that Mr Sabharwal would again drink to excess; second, that the Minister had overlooked, or failed to give proper, genuine and realistic consideration to, Ms Roman’s report when exercising the discretion under s 501(1). The Minister appealed. On 21 September 2018 the Full Court (Perram, Murphy and Lee JJ) unanimously allowed the appeal, set aside the orders below, and restored the Minister’s refusal decision. The Court ordered Mr Sabharwal to pay the Minister’s costs.
The Full Court’s reasoning is grounded in orthodox principles of judicial review of administrative satisfaction. At [45] the Court restated the test from Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]-[132] and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [21]: a finding is not illogical, irrational or legally unreasonable if a reasonable decision-maker could reach it on the material. The Court then systematically demonstrated that the Minister’s path of reasoning satisfied that standard.
First, the Court identified five uncontentious factual matters that supplied a logical foundation for a risk finding: (i) Mr Sabharwal’s long-standing alcohol problem evidenced by the 2012 drink-driving conviction, the January 2015 hospital admission for alcohol withdrawal, and the magistrate’s sentencing remarks; (ii) his continued consumption of alcohol after October 2015 despite statements to the contrary; (iii) limited insight demonstrated by his dismissal of the hospital admission, tactical concessions before the Tribunal, and misrepresentation that counselling had been voluntary; (iv) the move of his brother’s family to Melbourne, removing a stabilising influence and leaving him isolated (a matter emphasised in Ms Roman’s report itself); and (v) the contents of Ms Roman’s report which, far from suggesting resolved risk, identified continuing depression, possible PTSD, anger-management deficits and the need for further specific alcohol counselling ([50]-[55]).
Reading [67] in that context, the Full Court held that the Minister had made three clear findings: the link between alcohol and offending, the fact that Mr Sabharwal had not ceased drinking, and the consequent inability to accept that there was “no risk” of reoffending. The last sentence of [67] simply recorded that the risk would rise to a likelihood if he drank to excess; it did not make the entire risk finding conditional upon that event ([57]-[60]). The Court rejected the primary judge’s characterisation of the reasoning as involving an unstated “assumed link” that had not been properly considered. On the contrary, the Minister had expressly addressed the link and the materials supplied a logical connection between evidence and conclusion.
Second, on the psychologist-report ground the Court applied the well-known presumption that written reasons record what was considered (Acts Interpretation Act 1901 (Cth) s 25D; Migration Act s 501G; Yusuf at [5], [37], [69]). The Minister had reproduced a detailed, non-verbatim summary of Ms Roman’s report occupying six paragraphs. He referred to it twice in the character-test section ([67]-[68]) and, at [77], expressly incorporated the paragraphs containing that summary when assessing risk to the community in the discretion. The Court cited Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [14] for the proposition that sequential reasons do not imply compartmentalised decision-making. The absence of a further reference in the later discretionary paragraphs was therefore unsurprising: the report was primarily relevant to risk assessment and its contents (ongoing mental-health deficits and the need for further counselling) did not assist Mr Sabharwal on discretion. The inference that the report had been overlooked was therefore not available ([76]-[83]).
The Court emphasised that even if the report had been “ignored” in the narrow sense, it was not of sufficient importance to the discretionary exercise to constitute jurisdictional error (Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [97], [111]; Craig v South Australia (1995) 184 CLR 163 at 179). The Tribunal had recommended the report for the purpose of assessing risk of reoffending; once that risk was found adversely, the report’s contents tended to reinforce rather than mitigate community-protection concerns. Accordingly no constructive failure to exercise jurisdiction arose.
Prior to Sabharwal the law on s 501(6)(d)(i) was settled in several respects. Minister for Immigration and Citizenship v SZMDS and Minister for Immigration and Citizenship v Li supplied the test for illogicality and legal unreasonableness. Muggeridge had accepted that “abstract propensity reasoning” could be deployed when deciding whether to cancel a visa under s 501(2), but the primary judge had distinguished that authority on the basis that s 501(6)(d)(i) required an anterior jurisdictional-fact finding. The Full Court in Sabharwal effectively sidelined that distinction, holding that the actual reasoning disclosed in the Minister’s reasons, read as a whole, must be assessed against the SZMDS standard rather than any bright-line rule about conditional or propensity reasoning ([59]-[64]).
On the consideration ground, Carrascalao had confirmed that a decision-maker must engage in an “active intellectual process” with significant material. Yusuf and NBMZ had established that silence in reasons may found an inference of non-consideration, but only where the importance of the material makes such an inference necessary. Sabharwal applies those principles in the specific context of a personal ministerial decision under s 501(1) where the reasons are lengthy, structured and contain an express incorporation clause. The decision reinforces that a detailed summary plus cross-reference to that summary later in the reasons will ordinarily negate any inference of oversight.
After Sabharwal the law remains that risk under s 501(6)(d)(i) is an evaluative judgment of “a risk”, not a probability threshold. Conditional reasoning linked to future conduct is permissible if the materials support the probabilities. The decision also confirms that the obligation to give “proper, genuine and realistic consideration” (echoing Buchwald v Minister for Immigration and Border Protection (2016) 242 FCR 65) does not require repetitive discussion once the material has been addressed in the risk section. Subsequent Full Court authority has cited Sabharwal for the proposition that reasons must be read holistically and that inferences of non-consideration are not to be drawn with an eye “keenly attuned to error” (see the citations collected in the catchwords).
Paragraph [45]: “If the conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable.”
Plain English: The court is not there to substitute its own view. If sensible people could reach the Minister’s conclusion on the same evidence, the decision stands even if the judges themselves might have decided differently.
Paragraph [57]: “On a fair reading of paragraph 67 the Minister made three findings: (a) that Mr Sabharwal’s offending conduct is linked to his consumption of alcohol (which is uncontentious); (b) as Mr Sabharwal had not stopped drinking altogether … the Minister did not accept that there is no risk of his reoffending; and (c) in the event that Mr Sabharwal again drinks to excess the risk of him reoffending rises to a likelihood.”
Plain English: The Minister never said “the only risk is if he gets drunk again.” He said there is always some risk because the man is still drinking, and the risk becomes high if he drinks heavily. That is a complete answer to the character test.
Paragraph [79]: “Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others.” (quoting Gleeson CJ in S20/2002)
Plain English: Just because the Minister dealt with the psychologist’s report in the “risk” section and did not repeat it word-for-word in the “discretion” section does not mean he forgot it. Judges must not read ministerial reasons like a statute.
Paragraph [82]: “The more appropriate inference to draw from the absence of any express reference to the psychologist’s report in the latter half of the Minister’s reasons is that the Minister did not mention it because it was not critical to his exercise of discretion.”
Plain English: The report hurt Mr Sabharwal more than it helped him. It showed he still needed treatment and had not been honest about his drinking. The Minister did not need to keep quoting it when explaining why community safety came first.
Sabharwal will be triggered whenever a visa applicant has a criminal history substantially linked to alcohol or substance misuse, claims rehabilitation that is undermined by continued consumption or limited insight, and supplies a psychological report that, on its face, reveals ongoing mental-health deficits. The precedent is especially relevant where the Minister personally makes the decision and produces detailed written reasons that (i) contain a section-by-section summary of the expert report, (ii) expressly cross-reference that summary when finding risk, and (iii) incorporate the risk findings by reference when addressing the discretion. It will also apply where the Tribunal has remitted with a recommendation for expert evidence and that evidence ultimately reinforces rather than negates risk.
The decision is not confined to alcohol cases. Any evaluative risk assessment under s 501(6)(d)(i) that rests on continued problematic behaviour, lack of insight, absence of protective factors and an expert report that flags the need for further treatment will attract the same holistic reading of reasons. Conversely, Sabharwal warns against over-zealous parsing of ministerial reasons for “conditional” language or for silence in later sections. Fact patterns in which an applicant has demonstrably ceased the triggering behaviour, enjoys strong family support, and the expert report unequivocally states that risk is now low, will fall outside the ratio because the Minister’s contrary finding would then lack an evident logical basis.
Although the judgment itself does not discuss its own subsequent treatment, the manner in which the Full Court deploys existing authorities indicates the likely trajectory. The Court applied SZMDS, Li, Yusuf and Carrascalao without qualification and distinguished Muggeridge on the basis that the latter addressed a different statutory stage. It adopted the S20/2002 principle that sequential reasons do not imply compartmentalised thinking. Later courts can therefore be expected to treat Sabharwal as authoritative for the proposition that a detailed early summary plus later cross-reference is powerful evidence against any inference of non-consideration. The decision has reinforced the high threshold for illogicality findings in risk assessments and the caution required before inferring that a Minister has overlooked material that is expressly summarised in the reasons. The Court’s refusal to treat the psychologist’s report as “significant” to the discretionary stage (because its contents tended to support an adverse risk finding) is likely to be followed in cases where expert evidence is equivocal or adverse on rehabilitation.
The Full Court expressly reserved whether s 501(6)(d)(i) permits “abstract propensity reasoning” divorced from any temporal probability ([42]). That question remains live. The Court also left unexplored the precise degree of probability required before a “risk” can be found; it simply held that the Minister’s inability to “rule out the possibility” of further offending was sufficient on the present facts ([58], [63]). Whether a purely theoretical or “non-trivial” risk would suffice in other contexts was not decided.
Another open question is the weight to be given to a formulaic “I have considered all the evidence” paragraph when the material is not mentioned again in the discretionary section. The Court treated the formula as supportive but not decisive; exactly how much additional evidence of engagement is required before a court will decline to draw the Yusuf inference remains case-specific. Finally, the interaction between a Tribunal recommendation for expert evidence and the Minister’s subsequent obligation to “consider” that evidence in both the character test and the discretion may generate further litigation where the report is favourable to the applicant. Sabharwal shows that where the report is ultimately adverse or neutral, detailed summarisation at the risk stage will usually suffice. The position where the report strongly supports rehabilitation but is never referred to in the discretionary weighing exercise is not squarely addressed and may require future clarification.
Most practitioners assume that once a Tribunal recommends an expert report the Minister is under an irreducible obligation to analyse that report line-by-line in the discretionary section of the reasons. Sabharwal demonstrates the opposite: a six-paragraph fair summary placed in the risk section, coupled with an express incorporation clause, can discharge the obligation even if the discretionary paragraphs are silent. Another trap is treating every conditional sentence (“should he drink to excess…”) as creating a logical gap. The Court read the reasons holistically and refused to isolate [67] from the preceding 66 paragraphs that supplied the probabilities. Finally, many counsel still cite Muggeridge for the proposition that propensity reasoning is impermissible under s 501(6)(d)(i). The Full Court confined Muggeridge to its s 501(2) context and emphasised that the actual reasoning disclosed, not an abstract taxonomy, is what matters. These nuances are easily missed on first reading but are central to defending ministerial decisions in the post-Sabharwal landscape.
Introduction 1 In this proceeding the Minister for Immigration and Border Protection appeals from the judgment of a single judge of this Court which quashed the decision of the Minister to refuse to grant a visa to the respondent, Mr Sahil Sabharwal, because he did not pass the character test in s 501(6)(d)(i) of the Migration Act 1958 (Cth) (the Act). 2 Section 501(1) of the Act provides that 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". Section 501(6)(d)(i) provides that a person does not pass the character test if "in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would…engage in criminal conduct in Australia". The section requires an evaluative judgment by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such "a risk". Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person. 3 The appeal boils down to two broad questions. In summary the Minister alleges that the primary judge erred in deciding that the Minister's decision was vitiated by the following jurisdictional errors: (a) an illogical or irrational finding that there is a risk that Mr Sabharwal would engage in criminal conduct and/or a failure to give proper and realistic consideration to the link between Mr Sabharwal's alcohol consumption and the risk of his engaging in criminal conduct; (b) in the exercise the discretion to refuse to grant Mr Sabharwal a visa, overlooking or failing to consider a report provided by Mr Sabharwal's treating psychologist, or alternatively failing to give proper, genuine and realistic consideration to that report, and thereby constructively failing to exercise jurisdiction. 4 For the reasons that follow we consider the appeal should be allowed.
The factual and procedural background 5 The facts are not contentious. Mr Sabharwal came to Australia on a student visa in April 2007 and on 5 November 2009 he applied for a Skilled (Residence) (Class VB) visa. While awaiting a decision on his visa application Mr Sabharwal was convicted of a number of criminal offences: (a) on 5 July 2012 he was convicted of drink driving; he was fined $850 in costs and had his driving licence suspended for 12 months; and (b) on 28 October 2015, in the Local Court of NSW at Hornsby, he was convicted of seven public order offences that arose out of separate incidents on 7 August and 21 October 2015: (i) using offensive language in or near a public place or school; (ii) assaulting a police officer in the execution of duty; (iii) resisting or hindering a police officer in the execution of duty; (iv) assaulting a police officer in the execution of duty; (v) destroying/ damaging property; (vi) stalking/ intimidating with the intent of causing fear of physical harm; and (vii) intimidating a police officer in execution of duty. He was fined a total of $600, placed on a 12 month probationary bond with a requirement to undertake drug and alcohol counselling, and ordered to undertake a total of 300 hours of community service.
The delegate's decision to refuse to grant Mr Sabharwal a visa 6 In applying for the visa Mr Sabharwal provided to the Department of Immigration and Border Protection (Department) a National Police Certificate dated 7 December 2015 which set out the convictions above, along with other materials including a personal statement dated 25 February 2016 in which he sought to explain the circumstances of his offending conduct and a letter from a counsellor with Hornsby Drug, Alcohol and Gambling Service which said he had undergone counselling for drug and alcohol abuse in October and December 2015. 7 On 3 June 2016 the Department sent an email to Mr Sabharwal attaching a "Notice of intention to consider refusal of your visa application", which invited Mr Sabharwal to provide information to satisfy the decision-maker that he passes the character test under s 501(6)(d) and that the decision-maker should exercise his or her discretion to refuse his visa application. Mr Sabharwal then lodged further materials including submissions, a second personal statement dated 29 June 2016 in which he provided further explanation of his offending conduct, and references by friends, a co-worker, a pastor of the church he attended, and a Community Corrections Officer. 8 On 15 August 2016 a delegate of the Minister (delegate) decided that there was a risk that Mr Sabharwal would engage in criminal conduct if he remained in Australia and that he did not pass the character test in s 501(6)(d)(i) of the Act, and further decided to exercise the discretion to refuse the visa application. Mr Sabharwal was then taken into immigration detention.
The application to the Administrative Appeals Tribunal 9 Mr Sabharwal applied to the Administrative Appeals Tribunal (Tribunal) to review the delegate's decision. He put on further materials in support of his application including a statement by his brother, Mr Rahul Sabharwal. He was legally represented in the application to the Tribunal and both he and his brother gave evidence. 10 On 25 November 2016 the Tribunal handed down a decision setting aside the delegate's decision and remitting the visa application to the Minister to be determined according to law (the Tribunal decision). 11 The Tribunal described Mr Sabharwal's offending conduct as follows (at paragraphs 5 to 14 of its decision): 5. Mr Sabharwal was detained after he was found driving with a high range concentration of alcohol late in the early hours of 20 June 2012. In his oral evidence, he explained he had consumed a few beers - but the blood alcohol reading recorded in the Court Attendance Notice shows the applicant must have been drinking considerably more than that. The applicant was convicted on 5 July 2012 and his licence was suspended for 12 months. 6. The second set of charges arose out of an incident at the Westfield Shopping Centre in Hornsby. The facts are set out in the police facts sheet. Police were called to assist security officers in the centre on 7 August 2015 after the applicant was seen swearing and abusing customers in the food court. Two female police officers approached the applicant. He was verbally aggressive towards them. The applicant was arrested at 8.45am for assaulting one of the police officers while she questioned him about using offensive language in a public place. The applicant kept up a stream of venomous and derogatory comments addressed towards both officers. The abusive language continued after he was taken to the police station. He was also charged with resisting arrest, using offensive language and a second count of assaulting police. 7. The applicant was clearly drunk early in the morning. He was disturbing the peace, although he was not charged with an offence of that nature. He was verbally aggressive but - while a handful - he was not violent. (His resistance involved going limp and being uncooperative; the assaults appeared to occur when the applicant bumped against the police officers. He did not strike the officers although it appears he did try and spit at one of them.) The applicant was allowed to sober up somewhat before he was released on bail. 8. The details of this tawdry interaction are, for the most part, unremarkable. But the respondent says the offensive language merits closer attention. The fact sheet does not make clear which of the applicant's utterances was the subject of the offensive language charge. The fact sheet records the applicant using a number of expletives but that is not necessarily enough to ground a charge. I was told the real problem for present purposes was the applicant's shouted description of the arresting officers as "whores" and "fucking sluts" after they had effected the arrest and put him in the back of the police vehicle. 9. The police records provided at the hearing show the applicant rang Hornsby station on several occasions in the days that followed his arrest and release. On 3 September 2015, he called repeatedly to ask for a variation of his bail conditions so he could attend a church event at the Westfield centre where he was arrested. Police declined his request. Later that evening, he rang the station several times and asked for the phone number of an officer so he could send a 'selfie'. He turned up at the station early the following morning and was disruptive before he was asked to leave. He described the officer who had arrested him earlier as a "slut". He was obviously affected by alcohol and returned on several occasions to the police station to make a pest of himself throughout the day…. 10. Mr Sabharwal had another run in with police on 21 October 2015. Officers were called to the applicant's flat to assist sheriff's officers who were in the process of evicting the applicant. He appeared drunk when the officers arrived. He declined to leave and the police officers removed him from the premises. He became uncooperative and he was placed in handcuffs. At that point, the applicant turned his ire on the real estate agent who had sought the eviction. He is recorded as addressing the agent as follows: Steven, I will fuck you up. This is your fault. I am going to rape your mother. I will stick my dick deep inside her. 11. The applicant was subsequently charged with stalking or intimidating with the intent of causing fear of physical harm. But he was not done yet. As the applicant was bundled into the police vehicle, he recognized the police officer who had arrested him on the previous occasion. He addressed her by name from the inside of the vehicle, shouting: Laura is a slut. Laura you are a slut, your mother's a slut. I will rape you Laura. I will rape your children. I hope your children are born with disabilities. Laura you are a slut. Your grandmother is a slut. I fucking hate you Laura. 12. The applicant was charged with intimidating a police officer in execution of her duty. There was more to come. After he was transported to the station and placed in the dock, he urinated on the back wall of the dock and the seat. The dock had to be forensically cleaned at a cost of $450. The applicant was charged with damaging property. 13. The fact sheet notes the applicant contacted the station by phone on a number of occasions in the days that followed. He asked to speak with the female officer whom he had insulted. He also attended the station and behaved erratically. 14. The applicant initially disputed aspects of the accounts provided by police. In a statement provided to the Minister's department, he denied he had misbehaved to the extent described in the fact sheets. When he gave oral evidence at the hearing, he acknowledged the accounts provided by police were accurate although he said he did not have a clear recollection of what occurred. I have no reason to doubt the accounts in the fact sheets, and I accept them. But I was left with the impression that the applicant's acknowledgement of the police accounts was a tactical concession rather than a demonstration of insight and contrition. (References to exhibits omitted.) 12 The Department filed NSW Police Force "Fact Sheets" with the Tribunal, which summarised Mr Sabharwal's alleged offending conduct. In broad terms the Fact Sheets are consistent with the Tribunal's description of that conduct. 13 In his second personal statement Mr Sabharwal provided the following explanation for his offending conduct: Mid last year [mid-2015] when I moved out of home [which he shared with his brother and sister-in-law] and started living by myself…I found it really hard to live by myself and started suffering from anxiety and depression and started relying on Alcohol because I made a wrong choice of living by myself, instead I should have moved into a shared apartment with friends. My anxiety, depression and Alcohol were the reason I got into trouble. I should have straightaway got some counselling to get out of it but I was not thinking straight at that time and made mistakes which I'm truly sorry for. 14 The Tribunal found that excessive alcohol consumption lay at the root of Mr Sabharwal's conduct. It said that Mr Sabharwal "becomes obnoxious when he drinks to excess" and that "[a]ll of the applicant's relatively low-level offending appears to be connected to alcohol misuse. When he does not drink to excess, the evidence suggests he is able to live within the law...". 15 The question of whether or to what the extent Mr Sabharwal would continue to drink alcohol and how he managed any alcohol intake therefore loomed large before the Tribunal, which noted the following: (a) Mr Sabharwal said he "decided to take a few [alcohol and drug abuse] counselling sessions just to make sure it [the offending conduct] never happens again." The Tribunal found, however: That statement misrepresents what occurred: Mr Sabharwal was required to attend the counselling sessions as a condition of his bond. He had no choice in the matter. (b) Mr Sabharwal completed seven drug and alcohol counselling sessions between October and December 2015, and a Community Corrections Officer confirmed that he was "making efforts towards behavioural change" and "appears to be making efforts towards a law abiding lifestyle"; (c) Mr Sabharwal said he ceased drinking alcohol after receiving the counselling and had changed his ways, but under cross examination his evidence about his drinking changed. The Tribunal said (at paragraphs 19 to 21 of its decision): 19. Mr Sabharwal said he realized the error of his ways after the incidents with the police. In his statement he explained: After the counselling sessions I stopped drinking and in the New Year I made a firm decision that I will never get in trouble again and I will turn my life around and since then I have put in a lot of work in myself to become a better person than I was last year and have succeeded in overcoming the hardships I was facing. I feel like a complete new personal (sic) now and I'm embracing all the changes I've made in my life and will keep trying harder to become even a better person. 20. The applicant said he moved into shared accommodation, reconnected with his brother and started attending church while he was still in the community. (Rahul and his family have subsequently moved from Sydney to Melbourne but he indicated in cross-examination that the applicant could move to Melbourne with the family if he is allowed to stay in Australia.) 21. This essentially positive message was undermined somewhat when the applicant acknowledged in cross-examination that he continued to drink. When questioned about the claims in his statement suggesting he became abstinent, the applicant said he meant he had stopped drinking to excess. His brother agreed the applicant continued to drink while he was in the community in the first half of the year; although Rahul was reluctant to admit the applicant drank to excess, Rahul agreed he would prefer if his brother gave up drinking altogether. The applicant conceded that would be a good idea but said his counsellor had told him he should reduce his alcohol intake gradually. (Emphasis added. References to exhibits omitted). (d) "the risk of Mr Sabharwal re-offending is dependent on whether he can successfully manage his alcohol intake". 16 The Tribunal noted Mr Sabharwal's statement that he suffered from depression and anxiety and was being treated with anti-depressant medication and adjourned the hearing in an attempt to have his treating doctor give evidence regarding his mental health. However his doctor's attendance could not be arranged at short notice. 17 The Tribunal referred to the treating doctor's clinical notes including the record of Mr Sabharwal's admission to Hornsby Hospital in January 2015. The Tribunal said that the hospital discharge referral form stated that Mr Sabharwal "had experienced issues with alcohol and aggressive behaviour. He was prescribed anti-abuse medications and advised to see his general practitioner for a follow-up". In cross-examination before the Tribunal Mr Sabharwal dismissed his hospital admission as "the product of excess at Christmas time rather than an indication of a deeper problem." The Tribunal said it was reluctant to draw "untutored inferences" about Mr Sabharwal's health from the general practitioner's clinical notes and considered that his psychological condition should properly be the subject of expert evidence. 18 The Tribunal said that the absence of expert medical evidence addressing Mr Sabharwal's mental health issues made it difficult to complete the required assessment as to whether there is a risk that Mr Sabharwal would reoffend. It set aside the visa refusal and remitted the application to the Minister pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), with a recommendation that the Minister obtain a report by an independent medical expert as to the extent and effect of Mr Sabharwal's alcohol misuse and any other mental health conditions that might trigger alcohol misuse. The Tribunal made it clear that the report should be directed to whether any mental health issues and alcohol misuse might raise the risk of Mr Sabharwal engaging in further offending conduct.
Remittal of the application 19 Mr Sabharwal's visa application was duly remitted to the Minister for decision. Following the Tribunal decision Mr Sabharwal was released from immigration detention. 20 By letter dated 15 March 2017, the Department invited Mr Sabharwal to provide a psychological or psychiatric report in relation to his alcohol misuse and mental health issues. 21 On 13 April 2017 Mr Sabharwal lodged a report dated 11 April 2017 by a registered psychologist, Ms Claudia Roman, (the psychologist's report) with the Department. We will later set out the salient parts of that report.
The transcript of the sentencing hearing on 28 October 2015 22 On 19 May 2017 the Department provided Mr Sabharwal with a transcript of the 28 October 2015 sentencing hearing regarding his offending conduct and invited him to comment. Through his lawyer Mr Sabharwal accepted that he had "considerable issues" with alcohol, borne out by the fact that he had difficulties with his brother because of alcohol and his brother had asked him to leave the flat they shared. Counsel for Mr Sabharwal said he freely admitted "that things went awry after that, he was on his own and he had a drinking problem", which culminated in the offending conduct. 23 In her sentencing remarks, Magistrate Viney said: Mr Sabharwal your behaviour largely when intoxicated is not only clearly disgusting but inappropriate at a number of levels in terms of your direction of abuse towards police officers and I can well understand why the constable has some concerns in terms of her personal safety….You have a drinking problem and you need to address it. The only other matter on your record is a drink driving offence and that just suggests to me that your struggle with alcohol has been for a continued period of time and clearly led to part of the reason as to why you lost your employment. You need to deal with it, you need to get over it so can get back to some form of constructive life. (Emphasis added.) 24 On 23 May 2017 Mr Sabharwal lodged further submissions with the Department in which he said that the Magistrate's sentencing remarks were consistent with the Tribunal decision, that he had pleaded guilty to the offences and that the Local Court was satisfied that he had a drinking problem. He submitted that he had already been punished for the offences committed while he was intoxicated, had received counselling for alcohol problems, and should not be punished twice for the same offence.
The Minister's decision 25 On 13 July 2017 the Minister decided that Mr Sabharwal did not pass the character test under s 501(6)(d)(i), and decided to exercise the discretion to refuse to grant him a visa. 26 The Minister's decision comprised: (a) a one-page document titled "Visa refusal under subsection 501(1) of the Migration Act 1958 - Decision by the Minister for Immigration and Border Protection", signed and dated by the Minister on 13 July 2017. (b) a 15-page document titled "Statement of reasons for refusal of a visa under s 501(1) of the Migration Act 1958" (the Minister's reasons). 27 The primary judge summarised the Minister's reasons (at [34] to [67]) of the judgment below and we adopt that summary. 28 For the present it suffices to note that the Minister said that Mr Sabharwal's offending was linked to his consumption of alcohol. Notwithstanding his statements to the contrary, Mr Sabharwal had not ceased drinking altogether and the Minister did not accept that there was no risk of him again engaging in criminal conduct. The Minister said further that should Mr Sabharwal again drink to excess, there is a likelihood that he will reoffend. The Minister said that having regard to all the available information, and in particular Mr Sabharwal's criminal history and the psychologist's report, there was a risk that Mr Sabharwal will engage in criminal conduct in Australia. 29 Having found that Mr Sabharwal did not pass the character test in s 501(6)(d)(i) the Minister turned to consider whether to exercise the discretion to refuse Mr Sabharwal's visa application having regard to considerations including the protection of the Australian community, risk to the Australian community, the best interests of minor children, expectations of the Australian community and strength, nature and duration of Mr Sabharwal's ties to Australia. The Minister decided to refuse to grant Mr Sabharwal a visa. 30 The Minister said (at paragraphs 101 to 107 of his reasons): 101. I considered all relevant matters including (1) an assessment against the character test as defined by s. 501(6) of the Act and (2) all other evidence available to me, including information provided by, or on behalf of Mr Sabharwal. 102. In considering whether or not to refuse Mr Sabharwal's visa, I gave primary consideration to the best interests of Mr Sabharwal's brother's minor Australian citizen children and have found that their best interests would be best served by not refusing the visa. 103. Mr Sabharwal has a serious criminal history in Australia which includes offences against public officials in the course of their duties, and non-citizens who commit such offences should not generally expect to be permitted to remain in Australia. 104. I find that the Australian community could be exposed to significant harm should Mr Sabharwal reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr Sabharwal. The Australian community should not tolerate any further risk of harm. 105. I found the above consideration outweighed the countervailing considerations in Mr Sabharwal's case, including the best interests of his two minor Australian citizen nieces treated as a primary consideration, the impact on family members, church groups and his social networks. I have also considered the length of time Mr Sabharwal has made a positive contribution to the Australian community, some ten years and the consequences of my decision for minor children and other family members. 106. In reaching my decision I concluded that Mr Sabharwal represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above. 107. Having given full consideration to all of these matters, I decided to exercise my discretion to refuse to grant Mr Sabharwal's application for a Skilled (Residence) (Class VB) visa under s. 501(1) of the Act.
The application for judicial review 31 On 15 August 2017 Mr Sabharwal filed an application for judicial review of the Minister's decision in the Federal Court. In a judgment on 22 January 2018 (Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10) the primary judge upheld Grounds 1B(i) and 2 of the application and made orders to quash the Minister's decision and to remit the application to the Minister to be determined according to law.
The appeal 32 On 12 February 2018 the Minister filed a notice of appeal which raises seven grounds of appeal. The grounds follow three broad themes: (a) Appeal Grounds 1, 2 and 3 challenge the primary judge's findings on Ground 1B(i) of the application below; (b) Appeal Grounds 4, 5 and 6 challenge the primary judge's findings on Ground 2 of the application below; (c) Appeal Ground 7 alleges the primary judge erred in finding that the Minister exercised the power to refuse to grant Mr Sabharwal a visa for reasons other than the purpose for which it was granted. We will deal with the appeal by reference to these three themes.
Appeal Grounds 1, 2 and 3 - alleged errors in dealing with Application Ground 1B(i) 33 Appeal Grounds 1, 2 and 3 arise from Ground 1B(i) of the application below. Ground 1B(i) of was as follows: The Respondent misconstrued or misapplied s 501(6)(d)(i) of the Migration Act 1958 (Cth)…for one or more reasons. Particular 1B (i) At [67] of his reasons for decision, the Respondent accepted that the Applicant's offending was linked to alcohol consumption, and concluded that, should the Applicant again drink to excess, he will engage in criminal conduct. … 34 Appeal Grounds 1, 2 and 3 allege: 1. His Honour erred in determining ground 1B(i) in so far as he found any illogicality amounting to jurisdictional error. 2. His Honour erred determining ground 1B(i) in so far as he found jurisdictional error comprised of any failure to give "proper and realistic" consideration. 3. In upholding ground 1B(i), his Honour erred in finding any jurisdictional error and his Honour ought to have dismissed that ground. 35 These grounds focus on paragraph 67 of the Minister's reasons. Paragraphs 67 to 69 of the Minister's reasons said as follows: 67. I accept that Mr Sabharwal's offending is linked to his consumption of alcohol, and that Mr Sabharwal does not intend to get into trouble again. However as Mr Sabharwal had not ceased drinking, despite his claim that he had ceased which became a claim of ceasing "drinking to excess", and his claim to have ceased to drinking altogether to the psychologist, I do not accept that there is no risk of him reoffending. Should Mr Sabharwal drink again to excess it is likely he will engage in criminal conduct. 68. Having considered all the available information, in particular Mr Sabharwal's criminal history, and the psychological report, I find that there is a risk he will engage in criminal conduct in Australia. 69. I find that Mr Sabharwal does not pass the character test by virtue of s. 501(6)(d)(i) of the Act and Mr Sabharwal has not satisfied me that he passes the character test in that in the event Mr Sabharwal were allowed to remain in Australia, there is a risk that Mr Sabharwal would engage in criminal conduct in Australia.
The primary judge's reasons 36 The primary judge dealt with Ground 1B(i) and paragraph 67 of the Minister's reasons at [102]-[118] of the judgment. 37 The primary judge noted that the Tribunal had concluded it had insufficient evidence to make a finding regarding the risk of Mr Sabharwal reoffending and recommended that medical evidence be obtained, and that the Minister made and relied upon a finding about the link between Mr Sabharwal's offending conduct and consumption of alcohol (set out at paragraph 67 of his reasons). 38 At [106] the primary judge characterised the finding at paragraph 67 of the Minister's reasons as a conditional conclusion, and said that it could only serve as a finding of risk within the meaning of s 501(6)(d)(i) in certain circumstances. His Honour said: A conditional finding (such as in [67] of the Minister's reasons) positing that there is a risk that a visa holder would engage in criminal conduct in Australia should a second circumstance (ie drinking to excess) occur is not thereby necessarily disqualified from serving as a finding of a risk within the meaning of s 501(6)(d)(i). However, as a matter of logic, such a conditional conclusion can only do so if there are express, or necessarily to be implied, findings (a) that there is sufficient probability that the second event will happen; and (b) that there is sufficient probability that the happening of the second event was triggered by the first. As the Applicant submits, a finding of propensity to drink, even to drink to excess, cannot engage s 501(6)(d)(i). His Honour recorded (at [107]) that counsel for the Minister accepted that the Minister made no express findings as to those effects, but contended they were necessarily to be implied. 39 The primary judge continued (at [108]-[109]) that while it may be possible to infer particular findings from the reasons of an administrative decision-maker, a party seeking to augment a decision-maker's stated reasons with inferred findings faces a difficult task (citing Spruill v Minister for Immigration and Citizenship [2012] FCA 1401; (2012) 135 ALD 45 per Robertson J at [18] and Tauariki v Minister for Immigration and Citizenship [2012] FCA 1408; (2012) 135 ALD 41 per Cowdroy J at [43]-[44]). 40 At [110] the primary judge distinguished the present case from Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81 (Muggeridge), in which the Full Court (Charlesworth J, with Flick and Perry JJ concurring) accepted that it would not be inconsistent with the exercise of the discretion to cancel a visa under s 501(2) of the Act if the Minister was to address the question of the likelihood of reoffending by a form of abstract propensity reasoning (at [51]). His Honour noted that Muggeridge concerned the exercise of discretion to cancel a visa under s 501(2) whereas Ground 1B(i) concerned whether Mr Sabharwal passes the character test under s 501(6) which necessarily preceded any exercise of the discretion. 41 At [112] the primary judge reserved the question of whether or not s 501(6)(d)(i) permits "abstract propensity reasoning" for another occasion but, in reliance on Muggeridge at [43] and [54]-[55], said "it is not any assumed abstract reasoning but rather the decision maker's actual reasoning (in the present case as expressed at [67]) that must be considered when having regard to the critical question of whether a lapse in logic in its reasoning vitiates a decision" (emphasis added). 42 The critical parts of the primary judge's reasoning are found at [113] and [115]. His Honour said (at [113]-[117]): 113. The difficulty with accepting the submissions advanced on the Minister's behalf in this matter thus arises not only because, save for the fact of the consequential finding having been made, there is nothing contextually to point to the Minister having made the required findings despite omitting to state any findings regarding them but also because the Minister's actual reasoning (as set out at [67]) does not, without more, logically require that conclusion. 114. Critically the Minister's reasons proceed on the basis that the Applicant was not telling the truth when he informed the Tribunal and Ms Roman that he had ceased drinking. On that premise, the Applicant had continued to consume alcohol after his earlier offending. Given that the Applicant, for much of that time, was living within the Australian community where alcohol was readily available it might be reasoned that, having had the benefit of such counselling as the Minister accepts he had and motivated, as the Minister accepts him to have been, by the desire to remain out of trouble, the Applicant had established that he was able to drink without drinking to excess or had learned how to control his drinking to excess so as to avoid engaging in the kinds of ugly anti-social behaviour that had earlier got him into trouble. 115. There may be many paths of reasoning that could have entitled the Minister to have concluded differently and adversely to the Applicant, but no path, in my opinion, is so obvious as it must be assumed. Because the Minister's conditionally expressed findings were in respect of a jurisdictional fact, the Minister was obliged to give proper and realistic consideration to the assumed link: Buchwald v Minister for Immigration and Border Protection [2016] FCA 101; (2016) 242 FCR 65 (Buchwald) at [72]. There is nothing to suggest that the Minister gave any consideration to what finding or findings he might make in respect of that matter. 116. By addressing a different question than that posed by s 501(6)(d) the Minister fell into jurisdictional error. 117. That error was then incorporated into the conclusion expressed by the Minister at [69]. No basis was suggested by the Respondent to justify the Court differently concluding - and none is self-evidently apparent to it. On this basis the primary judge held that Ground 1B(i) of the application was made out.
Mr Sabharwal's submissions 43 In the appeal Mr Sabharwal made submissions to the following effect: (a) The primary judge considered the Minister's reasons as a whole and did not confine his consideration to paragraph 67 in isolation. His Honour paid most attention to paragraph 67 of the Minister's reasons because it explicitly stated the reason for the conclusion that Mr Sabharwal did not satisfy the character test, it was central to the way the Minister approached his task, and it was the target of Ground 1B(i) of the application. (b) The primary judge understood the requirement to read paragraph 67 "fairly in context" of the balance of the reasons and his Honour did so at, for example, [108] and [113]. The primary judge noted (at [90], [101] and [117]) that paragraph 67 of the Minister's reasons resonated elsewhere in the reasons, and it cannot fairly be said that his Honour confined his analysis to just that paragraph. The primary judge was plainly aware of the admonition in Minister for Immigration and Multicultural Affairs v Wu Shang Liang (1996) 185 CLR 259, and expressly noted (at [90]) that the Minister's reasons were not to be read with an eye attuned to the identification of error. His Honour understood (at [4] and [91]) that the Court's task required a fair reading of the Minister's reasons. (c) The primary judge did not err in stating that the Minister had made a "conditional finding" (about the risk of Mr Sabharwal reoffending) which depended on a "second circumstance" (Mr Sabharwal drinking to excess). His Honour indicated that such an approach was not necessarily disqualified from serving as the risk finding required by s 501(6)(d)(i), and further explained that conditional conclusions required express or implied findings about the probability of events and whether a second event was triggered by a first event. Mr Sabharwal argues that the Minister's conditional findings assumed greater significance in the present case because they concerned jurisdictional facts: see [115]. (d) The Minister was forced to rely on findings to be implied from the Minister's reasons rather than findings that were expressly stated (see [107]). Counsel for the Minister submitted below that the Minister's reasons were to be understood as if they included an implied finding that Mr Sabharwal would again drink to excess. Mr Sabharwal submitted that it is a "difficult task" to augment reasons with implied findings and that the primary judge's approach to the existence of implied findings was consistent with the approach to assumed abstract reasoning or the assessment of assumed links in jurisdictional facts. (e) The Minister's reasons do not show that the Minister was "plainly not satisfied" that there was no risk of Mr Sabharwal reoffending by reason of any change in his drinking. That suggestion fails to address the particular way in which the Minister formulated his reasons. At paragraph 67 the Minister said only "I do not accept that there is no risk of him reoffending", which offered no findings or reasons about whether Mr Sabharwal would drink in the future, whether his behaviour could be controlled (particularly following mental health treatment and counselling) or whether there is more than a minimal or trivial risk of him reoffending. (f) The primary judge did not assume that a particular level of drinking was required before there was a risk of criminal conduct. (g) The Minister's reliance on the finding in paragraph 68 - that there is a risk Mr Sabharwal will engage in criminal conduct in Australia - is conclusory and follows the earlier flawed findings and reasons. It does not afford an independent basis for the finding Mr Sabharwal does not pass the character test. (h) The primary judge correctly focused on the Minister's actual reasons at paragraph 67 rather than what was not said by the Minister, consistently with the approach taken in Muggeridge at [43] and [54]-[55]. Further, the primary judge's statement (at [113]) that "there was nothing contextually to point to the Minister having made the required findings" indicates that his Honour considered the Minister's reasons beyond just paragraph 67. (i) There was a gap in the logic of the Minister's actual path of reasoning. As the primary judge said (at [115]), the conclusion that Mr Sabharwal would again drink to excess and engage in criminal conduct was not so obvious that it could be assumed. Mr Sabharwal had established that he was able to drink without drinking to excess so as to avoid getting into trouble: see [114]. The path the Minister took to reach his conclusion under s 501(6)(d)(i) was not clear and there was no indication of the findings or reasons underpinning it. For example, the Minister could have made findings or expressed reasons relevant to Mr Sabharwal's alcohol consumption and risk of engaging in criminal conduct by reference to his mental health treatment, his degree of social isolation and/or his attendance at counselling, but did not do so. (j) The primary judge's approach to jurisdictional error was consistent with the authorities to which he referred at [105]; being Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS) at [23]-[24] per Gummow ACJ and Kiefel J for the proposition that a finding is not illogical or irrational if it is one which a logical or rational decision-maker could reach on the material; and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [37]-[38] per Gummow and Hayne JJ for the proposition that the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. The primary judge was also mindful of the requisite standard for legal unreasonableness and made reference (at [132]) to Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332. (k) The evidence in the materials on which the Minister relies as providing a basis for a logical or rational decision-maker to decide that there is a risk of future criminal conduct by Mr Sabharwal is insufficient. The material is not relevant to whether he "would" engage in criminal conduct as required under s 501(6)(d)(i), nor to any link between Mr Sabharwal's alcohol misuse and any mental health conditions that might trigger it for the purposes of assessing the risk of future reoffending. The evidence about the history of and reasons for Mr Sabharwal's alcohol consumption may have been a reason for him getting into trouble in the past, but beyond that merely confirms the primary judge's conclusion that there were multiple paths open to the Minister to reach a finding adverse to Mr Sabharwal, none of which the Minister in fact took.
Conclusion on Appeal Grounds 1, 2 and 3 44 Appeal Grounds 1, 2 and 3 raise for consideration whether the primary judge erred in concluding that the finding at paragraph 67 of the Minister's reasons was illogical or irrational and/or that the Minister failed to give proper, genuine and realistic consideration to the link found between Mr Sabharwal's consumption of alcohol and the risk that he would engage in criminal conduct if he remained in Australia. 45 Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error, as may a failure to give proper, genuine or realistic consideration to a significant matter. An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. Making a finding on a fact or issue in the application by drawing an inference or a conclusion which lacks a logical connection with the evidence might also be described as failing to give proper, genuine and realistic consideration to the fact or issue. However, any such decision or finding will not involve jurisdictional error if a reasonable decision-maker could reach that decision or finding on the same material: SZMDS at [130]-[132] and [135] per Crennan and Bell JJ and at [78] per Heydon J. As Allsop CJ observed in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [21] the question is "whether a decision-maker could reasonably come to the conclusion" reached. If the conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable. 46 For the primary judge to find illogicality, irrationality or unreasonableness his Honour had to be satisfied that the Minister's finding that there is a risk of Mr Sabharwal reoffending, or a finding by the Minister on the way to that conclusion, was not one which a reasonable decision-maker could reach on the evidence. 47 It is uncontentious that on 21 October 2015 Mr Sabharwal committed a number of public order offences while he was seriously intoxicated, and that he committed those offences because he was suffering from anxiety and depression and relying on alcohol. There is no dispute that Mr Sabharwal's offending conduct is linked to his consumption of alcohol. The gist of Mr Sabharwal's submission to the Minister was that, following his conviction in October 2015 and his then undertaking alcohol and drug abuse counselling, he "stopped drinking" and that early in 2016 he made a "firm decision that I will never get into trouble again and I will turn my life around". He said that he took various steps in that regard which included moving into shared accommodation, reconnecting with his brother, starting to attend church, starting to contribute to society by engaging as a volunteer in church activities and events, starting to pray and meditating every day. He said he was "sticking to his promise" to turn his life around, and there was no risk he would again engage in similar offending conduct. 48 The Minister accepted that Mr Sabharwal did not intend to get into trouble again and that he had taken various steps in that regard but, as numerous passages in the Minister's reasons show, the Minister did not accept that Mr Sabharwal had stopped drinking altogether, doubted the extent of his contrition in relation to his offending conduct, considered he lacked insight into his drinking and his offending conduct and had only made "some progress" towards rehabilitation, and considered that his lack of family support meant he had a heightened risk of reoffending. 49 Having regard to these findings by the Minister we consider it was open to him to conclude there was a risk Mr Sabharwal would reoffend if he is allowed to remain in Australia. While reasonable minds may differ as to whether that is the correct or preferable conclusion, we do not consider the Minister fell into jurisdictional error in so concluding. 50 First, the Minister must have understood that Mr Sabharwal had suffered a drinking problem for some time or, at the least, it was open to the Minister to so conclude. Amongst other things Mr Sabharwal: (a) was convicted in 2012 of driving under the influence, with a high blood alcohol concentration; (b) was admitted to Hornsby Hospital for alcohol withdrawal in January 2015, where he was prescribed anti-alcohol abuse medication and advised to see his general practitioner for follow-up; and (c) did not dispute the accuracy of the presiding Magistrate's sentencing remarks at the Local Court hearing on 28 October 2015 in which she said "your struggle with alcohol has been for a continued period of time and clearly led to part of the reason as to why you lost your employment". 51 Second, despite his initial statements to the contrary Mr Sabharwal did not in fact stop drinking following his conviction on 28 October 2015. In cross-examination before the Tribunal he changed his position and said that he had stopped drinking to excess rather than stopped drinking altogether. The Minister found that Mr Sabharwal had not stopped drinking alcohol and had simply reduced his alcohol intake. Given the Minister's finding that Mr Sabharwal's offending conduct was linked to his consumption of alcohol, the fact that he continued to drink was a matter of significance. 52 Third, the Minister found that Mr Sabharwal had limited insight into his behaviour and doubted his account of the extent of his rehabilitation. Amongst other things: (a) Mr Sabharwal's dismissal before the Tribunal of his January 2015 hospital admission as "the product of excess at Christmas time rather than an indication of a deeper problem" showed "limited insight into his behaviour"; (b) Mr Sabharwal's acceptance of the police account of his offending conduct was more a tactical concession than a demonstration of insight and contrition, and he failed to accept responsibility for his actions; (c) Mr Sabharwal sought to give the impression he attended the drug and alcohol abuse counselling sessions of his own volition by saying he "decided" to do so, when in fact he was compelled to attend the sessions as a condition of his court-imposed bond, which gave the Minister concern in relation to Mr Sabharwal's insight and progress to rehabilitation; (d) while the Minister accepted that Mr Sabharwal was making efforts towards behavioural change he concluded that Mr Sabharwal had made only "some progress" towards rehabilitation; and (e) the Minister found that Mr Sabharwal was unable to cease offending based on what the Minister called his "repeated" offending in 2012 and 2015. 53 Fourth, the Minister found that the fact that Mr Sabharwal's brother and family had moved to Melbourne while Mr Sabharwal remained in Sydney meant he no longer had direct family support, which heightened the risk of his reoffending. That finding was open to the Minister given: (a) Mr Sabharwal said he started relying on alcohol when he moved out of the home he shared with his brother and sister-in-law. Mr Sabharwal's brother described him as "a very emotional person" who felt "separation anxiety" when he was forced to move out of the home they shared; (b) the psychologist's report said that Mr Sabharwal felt more settled, grounded and connected when his brother and family lived in Sydney and that Mr Sabharwal now "feels isolated and extremely overwhelmed". 54 Fifth, the Minister summarised the salient parts of the psychologist's report (at paragraphs 62 65) noting that Mr Sabharwal said his offending conduct started because he was anxious and depressed and started to rely on alcohol, and that Ms Roman said that his mental health problems were not resolved. Amongst other things the report said that: (a) Mr Sabharwal is a "sensitive individual who has been adversely affected [by his time in immigration detention] and whose judgement has been impaired by depression, loneliness and social isolation"; (b) Mr Sabharwal presented as "quite erratic in mood" and "may be suffering from Post Traumatic Stress Disorder (PTSD)"; (c) Mr Sabharwal has felt "extremely overwhelmed and isolated"; and (d) Mr Sabharwal is "very aware that he needs professional psychological help in order to deal with the difficult issues that he faces including depression, anger management and the behaviour and thought processes that have led to these inappropriate incidences towards the female police officers." Ms Roman recommended reinitiating supervision through Mr Sabharwal's treating doctor and recommencing an appropriate course of antidepressants. She considered that Mr Sabharwal should receive continuing mental health treatment, on a weekly to fortnightly basis at a minimum, for an extended period of time. 55 Ms Roman did not say that Mr Sabharwal's problem with excessive alcohol consumption had resolved. Notwithstanding that Ms Roman's opinion was provided on the erroneous basis that Mr Sabharwal no longer drank alcohol (as Mr Sabharwal had apparently informed her) she opined that Mr Sabharwal required further "specific alcohol counselling" and assistance with his depression, anxiety and anger management. Ms Roman accepted that Mr Sabharwal was extremely motivated to change for the better but she said no more about the risk of his reoffending than that if Mr Sabharwal continued to engage in "help seeking behaviours", if he continued to work with mental health professionals, and if he remained engaged with his family that Mr Sabharwal had the potential "to achieve rapid progress" (emphasis added in italics). 56 It is in this context that the Minister's findings at paragraph 67 must be understood. For clarity we again note that the Minister said at paragraph 67: I accept that Mr Sabharwal's offending is linked to his consumption of alcohol, and that Mr Sabharwal does not intend to get into trouble again. However as Mr Sabharwal had not ceased drinking, despite his claim that he had ceased which became a claim of ceasing "drinking to excess", and his claim to have ceased to drinking altogether to the psychologist, I do not accept that there is no risk of him reoffending. Should Mr Sabharwal drink again to excess it is likely he will engage in criminal conduct. 57 On a fair reading of paragraph 67 the Minister made three findings: (a) that Mr Sabharwal's offending conduct is linked to his consumption of alcohol (which is uncontentious); (b) as Mr Sabharwal had not stopped drinking altogether (which is uncontentious) the Minister did not accept that there is no risk of his reoffending; and (c) in the event that Mr Sabharwal again drinks to excess the risk of him reoffending rises to a likelihood. There is no challenge to this finding. 58 At paragraph 68 the Minister went on to say that having regard to all the available information, and in particular Mr Sabharwal's previous offending conduct and the psychologist's report, there is a risk that he will engage in criminal conduct in Australia. At paragraph 104 the Minister said he "could not rule out the possibility of further offending by Mr Sabharwal". In substance that is also a finding that there is a risk of him reoffending: see Coker v Minister for Immigration and Border Protection [2017] FCA 929 (Coker) at [62] per Moshinsky J. 59 In our view the conclusion that there is a risk that Mr Sabharwal might again engage in offending conduct is one which a reasonable decision-maker could reach on the materials before the Minister. We consider the primary judge erred (at [105]-[106]) in stating that the Minister's finding that there is a risk that Mr Sabharwal would reoffend was "conditional" upon the probability of him again drinking to excess, in finding a lapse in logic in the Minister's reasons and in concluding that the Minister failed to give proper and realistic consideration to the "assumed link" between the risk that Mr Sabharwal would reoffend and the risk that he would again drink to excess. 60 First, the Minister did not say that the risk Mr Sabharwal would reoffend was conditional upon him drinking to excess. Nor did the Minister say that there was no risk that Mr Sabharwal would reoffend if he does not drink to excess. When the Minister's reasons are read as a whole the Minister found a risk of Mr Sabharwal drinking with a linked risk of criminal conduct and, in the last sentence of paragraph 67, the Minister found that risk of offending would rise to a likelihood if Mr Sabharwal drank to excess. Those findings were open. 61 Second, on a fair reading, we are not persuaded that the Minister's findings show flawed reasoning or a failure to give proper and realistic consideration to the link between alcohol consumption and the risk of offending conduct the Minister found. It is uncontentious that Mr Sabharwal continued to drink alcohol, despite what he had said in his statement and what he told his treating psychologist. It was open on the evidence for the Minister to conclude that there is a risk of Mr Sabharwal reoffending when Mr Sabharwal conceded a link between his past offending conduct and drinking alcohol. As we have said, the Minister did not state that the risk depended upon Mr Sabharwal again drinking to excess. 62 Third, there is no illogicality in the Minister's reasons when paragraph 67 is read in the context of the reasons overall. The Minister referred (at paragraph 77) to "having found at paragraphs 20 to 69 that Mr Sabharwal poses a risk of engaging in criminal conduct in Australia if he were to remain in Australia", yet to an extent the primary judge treated what was said at paragraph 67 in isolation from the Minister's findings in paragraphs 20 to 69. 63 Fourth, it is not clear to us what the primary judge meant (at [106]) in positing a requirement for a "sufficient probability" under s 501(6)(d)(i). The section provides that a person does not pass the character test if the decision-maker is satisfied that there is "a risk" that if the person were to remain in Australia he or she would engage in criminal conduct. The Minister plainly considered that there is. 64 Fifth, if, contrary to our view, the Minister found that the risk of Mr Sabharwal reoffending is conditional upon his drinking to excess in our view it was open on the materials for a reasonable decision-maker to conclude that there is a risk of Mr Sabharwal again drinking to excess and the Minister found that the risk of his reoffending rose to the level of likelihood if he did so. 65 Appeal Grounds 1, 2 and 3 are made out.
Appeal Grounds 4, 5 and 6 - alleged errors in dealing with Application Ground 2 66 Ground 2 of the application before the primary judge concerned the Minister's exercise of the discretion to refuse or grant Mr Sabharwal a visa, and focussed on the Minister's alleged failure to consider the psychologist's report. The ground was expressed as follows: The Respondent's decision is affected by jurisdictional error because: … 2. The Respondent failed to assess a consideration relevant to the exercise of his discretion to refuse to grant the Applicant's visa application under s 501(1) of the Act. Particulars (i) In his reasons for decision at [70]-[107], the Respondent failed to consider the Applicant's mental health conditions. 67 Appeal Grounds 4, 5 and 6 allege: 4. In upholding ground 2, his Honour erred: (a) in finding that the Appellant did not consider the psychologist's report of Ms Roman in the exercise of the Appellant's discretion. (b) in so far as he found that the Appellant had made a jurisdictional error, or had constructively failed to exercise jurisdiction, in relation to the said report. 5. Contrary to his Honour's findings in relation to ground 2: (a) there was no failure to give "proper genuine and realistic" consideration to the said report; (b) the Appellant was not jurisdictionally obliged to give the said report any more consideration (or, "attention") than he gave to it; (c) the ground ought to have been dismissed. 6. His Honour erred at [167] by finding that: (a) what his Honour described as the Appellant's "failure to take account of a significant factor objectively relevant to his statutory task", or the way in which the Appellant dealt with the abovementioned psychologist's report, amounted to a constructive failure to exercise jurisdiction; (b) there was a constructive failure to exercise jurisdiction even though there was no jurisdictional error. 68 Appeal Grounds 4, 5 and 6 arise out of Ground 2 of the application below and focus on the contention that the Minister overlooked or failed to consider the psychologist's report, and/or failed to give that report proper, genuine and realistic consideration and thereby constructively failed to exercise his jurisdiction.
The primary judge's reasons 69 The primary judge dealt with Ground 2 of the application at [132]-[168] of the judgment. The primary judge noted that the Minister's reasons summarised the salient parts of the psychologist's report at paragraphs 60 to 65 but his Honour considered that to be little more than a recitation. His Honour said (at [153]-[154]): All that paragraphs [60]-[65] (under the heading "Psychologist report") do is to provide a summary of the contents of Ms Roman's report. Those paragraphs involve no discussion at all, let alone discussion in depth, of any aspect of her report. Nothing is even "noted" by the Minister in respect of Ms Roman's report in those paragraphs. No findings are recorded. 70 In a similar vein the primary judge said (at [159]-[160]): There is no reference to, let alone discussion in depth or analysis of any aspect of Ms Roman's report recorded in any of those 37 paragraphs, including [77]. Nowhere in the Minister's reasons is there a mention of any possible relevance of Ms Roman's report to the statutory discretion the Minister was exercising. 71 The primary judge concluded (at [164]-[165]): In the light of what actually occurred including the history of Mr Sabharwal's matter in the Tribunal, the circumstances in which Ms Roman's report came to be produced and the absence of any mention of her report by the Minister in his reasons from [70] onwards, I am satisfied that the Applicant has established that notwithstanding the assertion at [101] that consideration had been given to "all other evidence available to [him], including information provided by or on behalf of Mr Sabharwal", the Minister did not consider Ms Roman's report when exercising his discretion under s 501(1). The Minister's failure to refer to Ms Roman's report in his reasons from [70] onwards given (a) the circumstances in which that report came into existence; and (b) that if Ms Roman's conclusions were to be accepted then they were relevant to the statutory task the Minister stated he was undertaking supports the inference that it was overlooked. (Emphasis added.) 72 Relying on Coker the primary judge observed that, in an appropriate case, ignoring significant relevant material can justify a reviewing Court drawing an inference that the decision-maker constructively failed to undertake his or her statutory task. His Honour continued that if he was wrong in concluding that the psychologist's report was overlooked by the Minister, he was in any event satisfied that the Minister failed to give proper, genuine and realistic consideration to the report. 73 At [167] the primary judge concluded: I am satisfied that the Minister's unexplained or unreasoned failure to take account of a significant factor objectively relevant to his statutory task, while not of itself a jurisdictional error, in the light of the Minister's statement that he had taken all of the material provided by the Applicant into account, in this case justifies me drawing an inference that the Minister constructively failed to exercise his or her jurisdiction.
Mr Sabharwal's submissions 74 Mr Sabharwal made submissions in relation to Appeal Grounds 4, 5 and 6 broadly as follows: (a) The primary judge correctly found that paragraphs 60 to 65 of the Minister's reasons merely summarised or described the conclusions from the psychologist's report including, for example, that Mr Sabharwal's judgment has been impaired by depression, loneliness and social isolation, that it was likely he was suffering from PTSD, that he had demonstrated remorse and that he agreed his behaviour had been reprehensible. They did not include any discussion, let alone discussion in depth, or analysis of the psychologist's report and the Minister did not record any findings with respect to Ms Roman's conclusions. Nowhere in the Minister's reasons concerning his exercise of the statutory discretion was there mention of the possible relevance of the psychologist's report. (b) In considering whether to exercise the discretion to refuse Mr Sabharwal's visa application the Minister gave attention to a number of considerations under the headings "Protecting the Australian Community", "Risk to the Australian Community", "Best interests of minor children", "Expectations of the Australian community", and "Strength, nature and duration of ties to Australia." The Minister did not however mention or discuss any aspect of the psychologist's report under those headings. (c) The psychologist's report should have been significant in the Minister's exercise of discretion, having regard to: (i) the Tribunal's decision to set aside the delegate's decision and remit the application to the Minister with a recommendation that such expert evidence be obtained; (ii) the Department's invitation to Mr Sabharwal to provide a psychological or psychiatric report in relation to his alcohol misuse and mental health issues; and (iii) the Minister's reasons only refer to the psychologist's report in contexts outside the Minister's exercise of the discretion to refuse to grant the visa. (d) The Minister's reasons set out the conclusion as to the exercise of discretion at paragraphs 101 to 107. Paragraph 101 said: I considered all relevant matters including (1) an assessment against the character test as defined by s 501(6) of the Act and (2) all other evidence available to me, including information provided by, or on behalf of Mr Sabharwal. The primary judge was correct in rejecting that formulaic statement as sufficient to show that the Minister in fact considered the psychologist's report or to show that the Minister gave the report proper, genuine and realistic consideration. (e) The primary judge did not err in concluding that the Minister overlooked or failed to consider the psychologist's report. His Honour appreciated that not every error vitiates a decision and the consequence or seriousness of ignoring relevant material is to be determined in light of the importance of that material to the exercise of the decision-maker's function. His Honour's alternative conclusion that the Minister did not give proper, genuine and realistic consideration to the psychologist's report was also consistent with authority.
Conclusion on Appeal Grounds 4, 5 and 6 75 We respectfully disagree with the primary judge's conclusion that the Minister erred by overlooking or failing to consider the psychologist's report, by failing to give proper, genuine and realistic consideration to the report or by failing to take account of the psychologist's report. 76 The written reasons of the Minister may, and generally will, be taken to be a statement of those matters considered and taken into account. If something is not mentioned it may be inferred that is not been considered or taken into account: Acts Interpretation Act 1901 (Cth) s 25D; s 501G of the Act; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [5], [37] and [69]; NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [16] per Allsop CJ and Katzmann J. Whether it is appropriate to draw such an inference must be considered by reference to the facts of each particular case and the Minister's reasons as a whole. The reasons must be construed in a practical and common-sense manner and not with an eye keenly attuned to the perception of error. 77 First, it is significant that the Minister summarised the psychologist's report in the following terms at paragraphs 60 to 65 of his reasons: 60. Mr Sabharwal's agent, Mr Dhruba Dahal has provided a psychologist report from Ms Claudia Roman dated 11 April 2017. In her report Ms Roman states: 'it is my professional opinion that Sahil is a sensitive individual who has been adversely affected and whose judgement has been impaired by depression, loneliness and social isolation; …in our first session Sahil's mood, presentation and symptoms were consistent with depression and anxiety. It is likely he may be suffering from Post Traumatic Stress Disorder (PTSD) given his experiences in Villawood Detention Centre and Christmas Island Detention Centre, but this would have to be further investigated and a more thorough assessment carried out.' 61. Ms Roman advises that 'Sahil has demonstrated remorse, appeared ashamed of his actions and conduct, agreeing that he needed held to address his depression and any reliance on alcohol. He also agreed that his conduct had been reprehensible and that he had a problem with anger management. It is my professional experience of Sahil in these recent session [sic] that he appears to be proactive in seeking help, in accessing appropriate pharmaceutical medication under the guidance of his GP and is willing to engage in at times difficult introspection.' 62. Ms Roman further commented on Mr Sabharwal's family connections, noting that he has a strong connection to his parents whom he misses and talks to as often as possible. She noted that they are a stabilising factor in dealing with his current situation, and that Mr Sabharwal had reported that he was more settled, felt grounded and connected when his brother and family lived in Sydney, now he feels isolated and extremely overwhelmed. 63. Ms Roman concluded her findings by noting that Mr Sabharwal had demonstrated self-responsibility in seeking professional help to begin addressing his past mental health problems. She advised that his current treatment regime included a goal to reinitiate and maintain the supervision of his General Practitioner and recommence appropriate anti-depressants. Ms Roman advised that Mr Sabharwal had reported to her that he had not had any alcohol since his release from immigration detention; however she noted that he will need support such as participation in specific alcohol counselling. 64. Ms Roman recommended that Mr Sabharwal continue to see a mental health professional to deal with his issues of depression, anger management and behaviour and thought processes that led to his inappropriate behaviour towards female police officers. 65. Ms Roman advised that in order to have the potential to achieve rapid progress, Mr Sabharwal will need to continue to engage in help seeking behaviours, continue to work with mental health professionals and continue to be engaged with his family. Those paragraphs are not simply a "cut-and-paste" of the psychologist's report; they comprise a detailed and, in our view, fair summary of the salient parts of the report. This points away from inferring that the Minister overlooked or failed to consider the psychologist's report. It is evidence of an "active intellectual process" by which the Minister engaged with the content of the report: see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 347 ALR 173 at [46]. 78 Second, at several points the Minister's reasons expressly refer to the psychologist's report, in ways that are significant. At paragraph 67 the Minister noted that the psychologist's report said Mr Sabharwal had assured Ms Roman that he had stopped drinking altogether, when in fact he had not. At paragraph 68 the Minister specifically referred to the psychologist's report in concluding that there is a risk that Mr Sabharwal would reoffend. Those references were significant in the Minister's finding in relation to the character test and they also point away from the conclusion that the Minister overlooked or failed to engage with the report. 79 Third, the Minister's reasons must be read as a whole. The fact that (after referring to the psychologist's report in the context of whether Mr Sabharwal passed the character test) the Minister did not again refer to it when dealing with the exercise of discretion does not mean he should be treated as having forgotten or overlooked the report in that context. As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [14]: Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. While the Chief Justice was there dealing with sequential reasons in relation to evidence given by different witnesses that approach is also applicable where, as here, the Minister's reasons deal sequentially with different issues or considerations: see Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 and [44] per Nicholas, Yates and Griffiths JJ. 80 Fourth, the Minister's reasons in relation to the exercise of discretion expressly referred back to and relied on his earlier findings in relation to the character test, which also tells against inferring that he forgot or overlooked the psychologist's report. At paragraph 77 of the Minister's reasons, where he considered the exercise of discretion under the heading "Risk to the Australian Community", the Minister said that "[h]aving found above at paragraphs 20 to 69 that Mr Sabharwal poses a risk of engaging in criminal conduct… I have considered whether Mr Sabharwal poses a risk to the Australian community through that reoffending." Those paragraphs include the Minister's summary of and express references to the psychologist's report. 81 Fifth, the Minister expressly said that he had regard to all the evidence provided by Mr Sabharwal in the one-page visa decision document and at paragraph 101 of his reasons where he said in relation to his exercise of discretion, "I considered all relevant matters including…all other evidence available to me, including information provided by, or on behalf of Mr Sabharwal". We would be cautious in drawing an inference that a relevant matter was considered based on such a formulaic statement, standing alone, but it does not stand alone in the present case. 82 The more appropriate inference to draw from the absence of any express reference to the psychologist's report in the latter half of the Minister's reasons is that the Minister did not mention it because it was not critical to his exercise of discretion. The psychologist's report was obtained because of the Tribunal's recommendation and it was primarily directed to assisting the Minister in relation to the risk of Mr Sabharwal reoffending for the purpose of the character test, rather than in relation to the Minister's exercise of discretion. In addition, the psychologist's report shows that Mr Sabharwal has continuing mental health problems and that he had not been frank with his treating psychologist about his continuing alcohol consumption. Counsel for Mr Sabharwal did not persuade us that there was anything in the report which might have assisted him in relation to the Minister's exercise of discretion. 83 If, as we conclude, the psychologist's report is not central to the Minister's exercise of discretion, any failure by the Minister to consider it does not constitute jurisdictional error. As Robertson J explained in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [97], and as provided in Craig v South Australia (1995) 184 CLR 163 at 179 (cited by McHugh, Gummow and Hayne JJ in Yusuf at [82]), for a decision-maker merely to ignore relevant material does not establish jurisdictional error. Such error is only established if ignoring relevant evidence affects the decision-maker's exercise or purported exercise of power. As Robertson J said "[t]he fundamental question must be the importance of the material to the exercise of the Tribunal's functions and thus the seriousness of any error": at [111]. The psychologist's report was not important to the Minister's exercise of discretion as to whether to grant or refuse a visa, at least not in a way which might have assisted Mr Sabharwal. 84 Appeal Grounds 4 and 5 are made out. 85 For essentially the same reasons Appeal Ground 6 must also be upheld. The primary judge concluded (at [167]) that the Minister failed to take the psychologist's report into account and for the reasons already expressed we respectfully disagree. The primary judge described the asserted failure as "a failure to take account of a significant factor objectively relevant to his statutory task" and for the reasons already expressed we do not accept that the psychologist's report was significant to the Minister's exercise of discretion. In an appropriate case the failure of an administrative decision-maker to have regard to relevant material could give rise to an implication that the Tribunal had constructively failed to exercise its jurisdiction in forming the state of satisfaction required by the Act: see Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 per Kenny, Griffiths and Mortimer JJ. This is not however such a case.
Appeal Ground 7 - alleged exercise of power for a purpose other than the purpose for which it was granted 86 Appeal Ground 7 alleges: His Honour erred if, and to the extent that, he found what he described at [168] as an exercise of power other than for the purpose for which it was granted. This ground also relates to Ground 2 below, and the exercise of discretion. 87 The primary judge said (at [168]): While the discretion is broad it must be exercised for the purposes for which the power is granted. As Kirby and Callinan JJ stated in Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 at 503-504: [W]here a discretion is conferred by statute, it must be exercised in accordance with the language by which it is conferred and to achieve the purposes for which the power has been granted. To talk of "absolute" judicial discretions, at least where such discretions are conferred by an Australian statute, involves a contradiction in terms. While those remarks relate to discretions conferred in relation to the exercise of judicial power, they apply equally to administrative decision makers. 88 Those remarks are unexceptionable, but Mr Sabharwal did not contend before the primary judge that the Minister exercised the discretion for a purpose other than that for which it was granted, there was no evidential basis for any such finding and, (unless it is to be inferred from [168] itself) the primary judge made no such finding. We accept, as Mr Sabharwal submitted, that [168] is obiter and unnecessary for his Honour's conclusions on Ground 2. We do not consider the primary judge made the finding alleged and this ground is not made out.
Costs 89 We have made orders to allow the appeal and we are aware of no reason why costs should not follow the event. We have accordingly made orders for Mr Sabharwal to pay the Minister's costs at first instance and on appeal but we grant liberty to apply to the parties in that regard. Should either party contend that a different costs order is appropriate that party must file short written submissions (no more than two pages) within seven days and the other party shall have seven days to file short written submissions in response. The Court will deal with any such application on the papers. I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Perram, Murphy and Lee.
Minister for Immigration and Border Protection
Sabharwal
(2017) 347 ALR 173
(2013) 230 FCR 431
(2016) 237 FCR 1
(2013) 249 CLR 332
(2010) 240 CLR 611
(2013) 212 FCR 99
(1996) 185 CLR 259
(2004) 207 ALR 12
(2017) 255 FCR 81
(2014) 220 FCR 1
(2003) 198 ALR 59
(2016) 242 FCR 65
(2001) 206 CLR 323
(1995) 184 CLR 163
(2002) 209 CLR 478
[2001] HCA 30
Appeal allowed with costs; primary judge's orders quashing the Minister's decision set aside.