The remaining grounds of review
104 Mr Montgomery contends that the Minister failed to give proper, genuine, and realistic consideration to the representations made by him regarding the best interests of his three minor children, that the Minister erred in his finding that Mr Montgomery posed an unacceptable risk to the Australian community, and that the Minister failed to give proper, genuine, and realistic consideration to the representations made by him regarding his Aboriginality.
105 In the statement of reasons for decision s 501CA of the Migration Act (Minister's reasons), the Minister concluded:
CONCLUSION
152. I have undertaken: (1) an assessment of whether the person has made representations in accordance with the invitation for the purposes of s 501CA(4)(a); (2) an assessment of whether I am satisfied that the person passes the character tests (as defined by s 501) for the purposes of s 501CA(4)(b)(i); and (3) an assessment of whether I am satisfied that there is another reason why the original decision should be revoked for the purposes of s 501CA(4)(b)(ii).
153. I concluded Mr MONTOGOMERY has made representations in accordance with the invitation.
154. I am not satisfied that Mr MONTGOMERY passes the character test (as defined by s 501).
155. In considering, in light of Mr MONTGOMERY's representations, whether I was satisfied that there is another reason why the original decision should be revoked, I gave primary consideration to the best interests of Mr MONTGOMERY's children, Tahrel, Saphire and Wyntah-Willow Montgomery and Mr MONTGOMERY's minor nieces and nephews. I found that their best interest would be best served by the revocation of the original decision.
156. In addition, I have considered the length of time Mr MONTGOMERY has made a positive contribution to the Australian community, the strength of his ties to the Australian community and the consequences of non-revocation of the original decision for his other family members, and the extent of impediments that Mr MONTGOMERY would face if he were removed to New Zealand.
157. On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the serious nature of the crimes committed by Mr MONTGOMERY, which includes aggravated burglary and commit offence in dwelling.
158. Further, I find that the Australian community could be exposed to harm should Mr MONTGOMERY reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr MONTGOMERY.
159. I am cognisant that where harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa, even applying a higher tolerance of criminal conduct by Mr MONTGOMERY, than I otherwise would, because he has lived in Australia from the age of 15. I have also considered his claims that he fears he will face harm due to his extensive facial tattoos from the Maori population, especially the Maori gangs if he returns to New Zealand, but as noted earlier, I am unable to make any finding in this regard without further substantiation of those claims.
160. In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr MONTGOMERY represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interest of his children and other minor family members, treated as a primary consideration, and the other countervailing considerations as mentioned above. These include his lengthy residence and ties, employment, volunteer and familial to Australia, and the hardship Mr MONTGOMERY, his family and social networks will endure in the event the original decision is not revoked.
161. Having given full consideration to all of these matters, I am not satisfied, for the purposes of s 501CA(4)(b)(ii), that there is another reason why the original decision under s 501(3A) to cancel Mr MONTGOMERY's visa should be revoked. Accordingly, as I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not enlivened and Mr MONTGOMERY's Class TY, Subclass 444 Special Category (Temporary) visa remains cancelled.
106 In a letter of 8 May 2020 to Mr Montgomery, it was said that 'the Minister decided, under s 501CA of the Migration Act, not to revoke the original decision'. That statement of the Minister's purported exercise of power is wholly inconsistent with paragraph 161 of the Minister's Reasons in which he states that his power in s 501CA(4) is not enlivened. The Minister identified that Mr Montgomery had made representations to him as to why the cancellation decision should be revoked, such that sub-s (4)(a) was satisfied. The Minister was, however, not satisfied of either of the matters in sub-s (4)(b). Thus, he concluded that the facts on which his power in s 501CA(4) to revoke the cancellation decision was conditioned did not exist. As a result, Mr Montgomery's visa remained cancelled.
107 The Full Court has explained that the matters in sub-s 4(b)(i) and (ii) are subjective jurisdictional facts. The question for a court on review is not whether they existed, but whether the Minister was satisfied that either existed: Ali at [41]. As in that case, by his reasons, the Minister recorded that he was not satisfied that Mr Montgomery passed the character test, nor was he satisfied that there was 'another reason why the original decision should be revoked'. The consequence was that the power in the chapeau, which was conditioned on the satisfaction of the jurisdictional facts in subs (a) and (b), was not enlivened.
108 As was observed by the Full Court, although the existence of a subjective state of mind is not beyond review by the Court, the grounds upon which it may be 'reviewed' are limited: MacCormick v Federal Commissioner of Taxation [1945] HCA 10; 71 CLR 283; Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353; Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-119; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; 272 FCR 409; BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; 277 FCR 420.
109 In Avon Downs, at 360, Dixon J said, in relation to the range of errors which might vitiate a claimed state of mind:
If he does not address himself to the question which the [statute] formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.
110 The consequence of the legislative structure of s 501CA was explained in Ali at [44]-[45]:
… in the case of s 501CA(4) the incorporation of a substantive deliberative process has the consequence that the process of forming the relevant state of mind incorporates certain implied statutory requirements. Prima facie, the function of forming a state of mind for the purposes of s 501CA(4)(b) is unconfined. However, s 501CA(3) requires the giving of notices and information to the affected person as well as the making of an invitation to make representations about the revocation decision. Section 501CA(4) may only ever become operative if, in accordance with subs (a), the person affected makes representations in accordance with that invitation. Although it is not expressly stated in subs (b) that relevant factors that the Minister must consider in forming his state of satisfaction or otherwise are the claims made in the representations, that conclusion is a necessary inference. The principles of interpretation or construction which are used to identify those factors which the person forming the state of mind is required to consider are not dissimilar to those found in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30, concerning the identification of relevant or irrelevant considerations for the exercise of discretions: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 270 [54]; Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 5) [2019] FCA 2073 at [184] - [187]. If "by implication from the subject-matter, scope and purpose of the Act" the repository of power is required to consider a factor in forming the required state of mind, any putative state of mind formed without considering it would be vitiated.
It would follow that a failure by the Assistant Minister to consider, by engaging in an active intellectual process, a clearly articulated ground raised in the representations provided by the affected person would amount to an error which may vitiate the putatively formed state of mind.
111 In BHL19, Wigney J (albeit dissenting in the result) discussed the substance of the obligation to take into account a relevant factor, particularly in the context of the power in s 501CA(4), at [169]:
As was made clear most recently by the Full Court in Minister for Home Affairs v Omar (2019) 373 ALR 569; [2019] FCAFC 188 at [37], the Minister is obliged to engage in an "active intellectual process with significant and clearly expressed relevant representations" in the context of a decision to cancel or refuse a visa. Depending on the nature and content of the representations, the Minister may also be "required to make specific findings of fact" in relation to the matters raised in the representations: Omar at [39]. It is not sufficient for the Minister to merely "note" the representations, or state that they had been considered or taken into account: Omar at [43]; see also AEM20 v Minister for Home Affairs [2020] FCA 623 at [100]. The failure to consider, in a relevant legal sense, significant matters raised clearly by a person in the appellant's position will amount to a "failure to conform with the Act" or a failure to "carry out the relevant statutory function according to law": Omar at [45].
112 A failure to properly take into account or have regard to a claim raised by the person in his or her representations will necessarily have the consequence that one of the Avon Downs errors has occurred, such that if the error was material, the putative state of mind formed by the Minister will be vitiated: Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531 at [72]; Ali at [49].
113 In this context, it is important to observe that the obligation to consider Mr Montgomery's claims arises as a necessary incident of the Minister's task. As Allsop CJ said in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 at [3], Markovic and Steward JJ agreeing) in relation to decisions made under s 501 of the Act:
By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [9]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
114 More recently, the Full Court has said in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 at [30] per Burley, Colvin and Jackson JJ:
What is required, is consideration of a kind that means that the Minister's state of satisfaction is formed after, at least, an evaluation of the persuasiveness (in the view of the Minister) of each reason of significance that is prominently put forward in the representations as a reason why the original decision to cancel the visa should be revoked. Where there are number of reasons put forward then they should all be considered together. If the Minister is of the view that there are countervailing reasons that affect whether the reasons advanced by the person concerned are sufficient to be 'another reason' then the persuasiveness to the Minister of the reasons advanced by the representations is to be evaluated by a process whereby those reasons and the countervailing reasons are all considered.
115 Importantly, the Full Court went on to say, at [36]:
The Court is also conscious in cases like the present that the repository of the power is the Minister and it is the Minister's state of satisfaction that determines whether there is power to revoke the visa cancellation. It is not for the Court to usurp that authority entrusted by Parliament in the Minister and clothe a view as to the merits of the reasons advanced by way of representation to the Minister with language said to manifest jurisdictional error. In order for there to be jurisdictional error of the kind alleged in the present case there must be a finding that the duty to perform the statutory task was not carried out, not that there is disagreement, even strong disagreement with the reasoning and conclusion reached. Put shortly, the Court must not do anything that would substitute its state of satisfaction for the Minister's state of satisfaction in the present case.