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[2019] FCA 295
Federal Court of Australia
2019-03-08
Allsop CJ
Original judgment source is linked above.
ALLSOP CJ: 1 This is an application for review of a decision of the then Assistant Minister for Home Affairs made on 23 April 2018 not to revoke an earlier decision made on 22 March 2017 made by a delegate pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act). The decision in 2017 involved the mandatory cancellation of the applicant's Class BC Subclass 100 (Spouse) visa. 2 The applicant is a 40 year old Fijian national. He arrived in Australia in 2000. He has three Australian born children who are citizens from a relationship with a former partner. That relationship ended in 2009. At the time of the Minister's decision in April 2018, the three children were 11, 15 and 17 and lived with their mother in Victoria. The applicant has an Australian citizen partner to whom I will refer as Ms R given her circumstances that will become apparent. 3 The applicant's criminal record commenced in 2009. From 2009 to 2012 there were various less serious matters: possessing a dangerous article in a public place, refusing a breath test, theft, driving whilst disqualified, failing to answer bail granted and failing to comply with a community based order. His most serious offending occurred in a domestic violence context. In March 2014, he was sentenced to 18 months in prison for intentionally causing injury and contravening a family violence order. Eleven months of this sentence was suspended for two years. In October 2014, after his release on parole, he contravened a condition of his bail, recklessly caused injury, committed assault with a weapon, and contravened a family violence order. Following these offences, on 18 December 2014, the Minister wrote to the applicant informing him of the mandatory cancellation of his visa. The applicant applied for revocation of this cancellation. He was informed of the success of this application on 5 August 2016. Less than half a year later, on 24 January 2017, the applicant was convicted of intentionally causing injury, making a threat to kill, and intentionally destroying property. He was sentenced to 9 months in prison in aggregate. This final set of convictions is the basis for the current mandatory cancellation of his visa, as his cumulative term of imprisonment for these and his previous convictions is over 12 months in length: s 501(3A)(7)(d) of the Act. 4 This last episode of violence in 2017 was described by the Minister in [36] of the reasons as follows: I note that the offending took place when Mr NAVOTO had been drinking and were carried out against his partner Ms [R], who had locked herself in their bedroom for fear of Mr Navato's 'aggressive nature'. Mr NAVOTO smashed the bedroom window and climbed through, then ran at Ms [R] yelling 'You're fucked' and 'You're dead' and punched her to the face several times, causing it to swell. Mr NAVATO then started throwing things around the room whilst calling Ms [R] a 'slut' and a 'whore'. He then grabbed her by the neck, wrapped a bedsheet around her face and pushed her face into the mattress causing her to be unable to breathe for 'approximately five to 10 seconds'. The police were called and saw Mr NAVOTO standing over and yelling at a 'cowering' Ms [R]. I find these details of the offences add to the seriousness with which I view them. 5 By the letter dated 5 August 2016 under which a delegate of the Minister had communicated with the applicant and informed him of the revocation of the first cancellation decision, the applicant had been notified of the following: Please note: the decision to revoke the original decision does not mean that you cannot be reconsidered for cancellation on character grounds in the future in the event of further criminal offending by you. 6 After the January 2017 conviction, on 22 March 2017, the applicant's visa was mandatorily cancelled under s 501(3A) by reason of a failure to pass the character test. The applicant was informed of such by a letter dated that day. The letter informed the applicant of his opportunity to seek revocation. The letter outlined the nature of the representations and other background as follows: You are hereby invited to make representations to the Minister about revoking the decision to cancel your visa. The representations must be made in accordance with the instructions outlined below, under the headings entitled "How to make representations about revocation of the decision to cancel your visa" and "Timeframe to make representations about revocation". … How to make representations about revocation of the decision to cancel your visa If you decide to make representations about revocation of the decision to cancel your visa, you can write to us using the attached Revocation Request Form. Under s499 of the Act which permits the Minister to issue written directions about the exercise of powers under the act, the Minister has issued Direction 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA which identifies issues that are relevant to the revocation consideration. A copy of Direction 65 is enclosed for your information. You should address each paragraph in PART C of the Direction that is relevant to your circumstances. Please note that if the decision-maker who makes the decision regarding whether or not to revoke the decision to cancel your visa is a delegate of the Minister, they must follow Direction 65. If, however, the Minister makes a revocation decision personally, he or she is not bound by Direction 65, although Direction 65 provides a broad indication of the types of issues that the Minister is likely to take into account in deciding whether or not to revoke the decision to cancel your visa. A copy of the following document, which contains information in the possession of the department at the time the mandatory decision to cancel your visa was made, is enclosed for your information. • File note dated 22 March 2017 No further action will be taken in relation to the enclosed information as it will not alter the mandatory decision to cancel. However, if you make representations about revocation of the cancellation decision according to the instructions in this letter as outlined below, then the enclosed information will also be taken into consideration when deciding whether or not to revoke the mandatory cancellation decision. As some of the enclosed information is adverse information that may undermine the possible revocation of the decision to cancel your visa, if you decide to make representations in support of revocation of the decision to cancel your visa, you may also wish to provide specific comments regarding the enclosed information, in particular the adverse information. You can provide any other information that you feel the decision-maker should take into account. This can include, but is not limited to, letters of support from your family, friends, employers or others. The file note dated 22 March 2017 that was enclosed stated the following: I contacted Corrections Victoria by email today. I was advised that Mr Lemeki NAVOTO is serving a sentence of imprisonment on a full time basis in Fulham Prison in Victoria. Previously Mr Lemeki NAVOTO was convicted of Intentionally Cause Injury, Contravene-Family Violence Intervention Order-Int Harm/Fear in Melbourne County Court on 26 March 2014 for which he was sentenced to imprisonment for 18 months. Mr Lemeki NAVOTO was convicted of Intentionally Cause Injury, Make Threat To Kill and Intentionally Destroy Property in Dandenong Magistrates Court on 24 January 2017 for which he was sentenced to imprisonment of nine months. 7 In April 2017 the applicant provided the relevant revocation request form and a personal circumstances form to the Department. Relevantly, in these documents he said in handwriting in relation to reasons for revocation and the relationship with his partner: Request for Revocation of a Mandatory Visa Cancellation under s 501(3A) I HAVE BEING [sic] LIVING AND WORKING IN AUSTRALIA SINCE 2000 AND I HAVE 3 BEAUTIFUL CHILDREN NAME (CHRISTIAN CHARLES NAVOTO, GRACE MILI NAVOTO, AND WILLIAM MAXWELL NAVOTO. I LOVED MY KIDS WITH ALL MY LIFE AND EVERY CHILDREN DESERVED TO BE AND HAVE PARENTS WHETHER FATHER OR MOTHER. AS A FATHER I WILL DO EVERYTHING AND ANY HELP I CAN GET TO BE A BETTER PARTNER, A BETTER FATHER AND A BETTER PERSON TO HELP COMMUNITY AND HELP ALOT [sic] OF PEOPLE IN NEED FOR BETTER LIFE AND LOOK AFTER OUR LAND OF OPPOTUNITY [sic] CALLED AUSTRALIA. Personal Circumstances Form I STARTED HAVING A RELATIONSHIP WITH MY PARTNER [MS R] ON THE 9/1/2011 AFTER SEPARATED WITH MY WIFE SHELLY NAVOTO. ME AND SHELLY NAVOTO SHARED THE RESPONSIBILITY OF BRINGING OUR 3 KIDS REGARDLESS OF LIVING IN TWO SEPARATED HOUSE. THROUGH OUT MY RELATIONSHIP WITH [MS R] I JUST FOUND OUT THAT SHE HAD MENTAL ISSIEUS [sic] WHICH I HAVE TO DEAL WITH AND LOOKING AFTER HER AS HER CARERER [sic] AND PARTNER. I HAVE REASONATLY [sic] (PREVIOUSLY) PROVIDE EVERY LETTERS AND DOCUMENT ABOUT MY RELATIONSHIP WITH [MS R] AND REGARDLESS TO OUR ISSUIS [sic] AND PROBLEM WE REALLY NEED EACHOTHER [sic]. [Emphasis added.] 8 The emboldened part above can be seen to be an incorporation in this 2017 document of what he had previously said of his relationship with Ms R in 2015 and the earlier documents concerned with that matter. 9 There were also handwritten descriptions of his relationship with his children and the effect cancellation of the visa will have on them. Given the issues in the application, there is no call to set these out. 10 In relation to his criminal history and the risk of offending, he wrote: Do you believe that there are any factors that help to explain your offences which should be taken into account by the decision-maker? THE ONLY PROBLEMS THAT I HAVE IS MY RELATIONSHIP WITH MY PARTNER [MS R], AND HOW TO DEAL WITH OUR ALCOHOL CONSUME [sic] AND ANGER MANAGEMENT. I HAVE 12 MONTHS CCO AT THE END OF MY SENTENCE AND I WILL UNDERGO RELATIONSHIP COUNSELLING PROGRAM, ANGER MANAGEMENT AND ALCOHOL COUNSELLING AND GET HELP FOR DEPRESIONS [sic] AND ANXITY [sic] WHICH IM [sic] ON MEDIATION FOR IT. … If yes [in answer to the question "Have you ever previously received a warning from the Department or Minister?"], please indicate why you re-offended. I HAD AGUMENT [sic] WITH MY PARTNER AND I WALK AWAY AND MADE A WRONG DECISION TO DRINK ALCOHOL AND GET DRUNK. BECAUSE MY TABLETS I TOOK AND MIX WITH ALCOHOL MADE ME ACT STUPID AND I DEEPLY REGRET. What do you think is the likelihood that you may re-offend now? Please give reasons for your answer. NONE, AND I STOP DRINKING ALCOHOL AND MY C.C.O PROGRAM WILL KEEP ME ALERT AND GET HELP FOR MY DEPRESION [sic] AND ANXITY [sic]. Have you completed any course or programs that will help you to avoid further offending and to make a positive contribution to the community? Please provide evidence e.g. course completion certificates. MY CORRECTION ORDER WILL PROVIDE ALL THE PROGRAMS WHEN I GET RELEASE FROM PRISON. 11 By letter dated 28 December 2017, the Department invited comment on information (which was enclosed) which it was said may be taken into account, that information being described as: • National Police Certificate dated 23 March 2017 • Sentencing Remarks of the Dandenong Magistrates Court, dated 24 January 2017 • Warning about future conduct (following prior decision not to cancel), dated 5 August 2016 and acknowledgement dated 5 August 2016. 12 In response, the applicant on 8 January 2018 sent a two page email with some enclosures. Though long, it should be set out in full: … This is my response to the notice of intention to cancel my visa dated 22 March 2017. I accept that I have substantial criminal record and do not pass the character test. I would like you to exercise your discretion and not cancel my visa. Please take the following information into consideration when you make your decision. I acknowledge that I have committed offences of a serious nature. My criminal record is relatively long and it includes some offences which are considered as "Serious Offences", and some which also have some aspect of violence. The most recent offence is one of family domestic violence, which occurred on the 5th of December of 2017 at a place where my partner and I resided. Before 2017 I had been convicted of a number of other offences, all of these connected somehow to my alcohol dependence. I started committing offences when I was 32 years of age and I have been convicted of a few offences since then. Some were less serious, such as a drink driving charge in 2011. For the most recent offence of family violence I received a sentence of 9 month [sic] imprisonment and 12 months community correction order. This is at the lower end of the scale of sentences and the Judge took into account a lot of things that were happening in my life at the time of the offence and reduced my sentence. The Judge also said that Her Honour with some rehabilitation I would improve my chances of staying out of trouble. At that time I was 4 months into living back into the community and me and my partner [Ms R] were looking for a new place to stay. We were living in one of the local motel [sic] for about 2 weeks before we found a place where we paid rent and finally settled in. My partner and I had individual issues that needed to be addressed and also get help in order to resolve it. Around this time on the 5th of December my partner and I had an argument and I decided to walk away and left our place. I haven't touched alcohol for about 3 years but on that very day, emotionally stressed and depressed I decided to have a drink of alcohol, which did not bode well and later resulted in me having a conflict with my partner once I returned home. When I was arrested I knew I had done the wrong thing by my partner, who I love and the one person that is there for me when I needed her the most. I naively took upon touching alcohol on that very day to ease my depression and anxiety, and I was wrong. I did not fully comprehend the consequences of my actions for me, my partner or my family. I feel ashamed about the way I treated my partner. : Risks that I might reoffend: This offence is clearly not my first one but all of them are related to my own problems, some with alcohol, some of them being personal problems that have come about because of my own background. I now feel ashamed about the way I have behaved in the past and deeply regret the hurt I have caused to my partner, my kids and other families. I haven't been able to see my kids because of the time I spent in Gaol and while being in Detention centre and that also play a large part for my stress and depression. I am also making an effort to sort out my life and to become a person and a dad that my kids use [sic] to know and be proud of. If I permitted to remain in Australia I will not repeat the mistakes of my past. I am now in a different position to where I was before and with the help of counselling, work, and getting to see my kids again, it will make me a more mature and noble person and hopefully be the better dad that my 3 lovely children deserve. I have been in contact with my partner [Ms R] everyday via telephone and also talked about how we can improve and better our future, and also in terms of seeking relationship counselling if needed. I couldn't put a price on my family, and since the veil that alcohol had put over my eyes has been lifted, there is absolutely nothing I wouldn't [sic] to have the opportunity to have a life with my partner and my children. I have sought proper medication for my depression and I know with the support of my partner and my family in Melbourne, I will maintain my commitment to a better life an stay away from alcohol. I used alcohol impetuously as a means to deal with problems but I have learned so much within this time away from my family and completely rejected that notion ever again. I hope you will take all of the above information into your consideration and find it within you to entrust upon me with a chance to be a better man, husband or father to my family. 13 Also, on 19 January 2018, Ms R, the applicant's partner, made written representations. Again it should be set out in full: My name is [Ms R]. I am writing on behalf of my partner Lemeki Navoto. Lemeki and I are sincerely in love and want to spend the rest of our lives together. I have being [sic] strongly against us being separated, which has affected me both emotionally and physically all throughout this ordeal. I miss him very much, considering his Goul [sic] time and in detention. It has been hard for me being separated from him. I do have daily phone contact with Lemeki and I'm very grateful to have him in my life during this very hard period. I'm very proud of him; he's very fit mentally and physically. I wish for both of us to receive the most professional relationship counselling in aspect of any relationship problems. Lemeki is a very important part of my life. Please consider your decision for him to reside with myself and his children in Australia and for us to continue our long term relationship. I adversely disagree upon the decision on the 6th of December 2017 which derived from a disagreement we both had and which was poorly misled by both of us. I strongly believe, if given the opportunity for both of us to reunite, Lemeki and I will receive the utmost professional help and best advice to fulfil our love for one another in all aspect of our relationship, and pave the way for a beautiful future for us and our children. Please take my request into consideration for your decision regarding Lemeki and myself to uphold our positive long term future relationship and for us to reunite once again. I sincerely request you take the mental and emotional trauma that would be inflicted upon me and our children if we are kept separated and consider in your decision to let us reunite, so we can live the rest of our lives together. 14 On 6 March 2018, by letter of that date, the Department invited further representations on further information (which was enclosed) being the papers that were before the earlier delegate (who had revoked the first cancellation decision). The information was described as follows: • Revocation Request dated 9 January 2015 • Submission by Mr Lemeki NAVOTO undated • Personal Details Form dated 13 January 2015 • Legal Submission from Victoria Legal Aid dated 6 February 2015 • Letter of Support from Ms Ilisapeci Davis dated 19 May 2015 • Legal Submission from Victoria Legal Aid dated 23 November 2015 15 In the undated submission (the second of the above documents), the applicant addressed his children, his hopes to deal with alcohol and reside with his partner. The submission did not mention any mental illness of his partner. It did refer to the death of his mother and his leaving Fiji thereafter "cause I have nothing to live for in there [sic]." 16 In the personal details from (the third of the above documents), the applicant said the following about returning to Fiji: If yes, please describe your concerns and what you think will happen to you if you return I DON'T HAVE ANY IMMEDIATE FAMILY LEFT THAT I'M CLOSE TO. MY MUM AND MY FOSTER PARENTS ARE BOTH PAST AWAY [sic] AND MY CONCERN IS THAT I DON'T HAVE A LIFE OR ANYTHING TO LIVE FOR IN MY COUNTRY OF CITIZENSHIP. BUT TO BE IN AUSTRALIA WITH MY KIDS AND PARTNER. 17 In the legal submission from Victoria Legal Aid of February 2015 (the fourth of the above documents), various submissions were put. The first was on the subject of the protection of the Australian community. In over a page of discussion on this subject and in a part of it explaining his actions, it stated: … Once again, these offences occurred while he was drunk. He describes 2012-2013 as a particularly difficult period in his life: his ex-wife was being obstructive in letting him see his children, resulting in his sporadic contact with them ceasing altogether in 2012; he lost his job in October 2012 due of lack of available work; his depression continued but remained untreated; and he was experiencing problems and volatility in his relationship with Ms [R], who suffers from a mental illness and for whom he was essentially the primary carer. Throughout this period, Mr Navoto used alcohol as a form of escapism and self-medication, with disastrous consequences. Clearly, the risk of Mr Navoto reoffending and endangering the Australian community in the future is intrinsically linked to his ability to address his alcohol addiction and his underlying mental illness. While he was apparently diagnosed with depression and anxiety in the past by his GP at Dandenong West Medical Centre, he declined treatment for it at the time as he was embarrassed by the diagnosis, and felt that he could just "tough it out". During his current period of incarceration he has come to terms with the fact that he needs to accept treatment for his illness, and has commenced anti-depressants and anti-anxiety medication which he feels is slowly taking effect. Upon release from prison he is committed to continuing in his treatment, and hopes to go onto a mental health plan and seek the support of a psychologist. Mr Navoto's changed attitude towards medication and treatment for his illness bodes well for his rehabilitation, and his avoidance of alcohol as a means of self-medication. If Mr Navoto can indeed address his alcohol dependence, it is submitted that the Department ought to have confidence that the risk to the Australian community of his committing further offences is substantially reduced. 18 In a later section of the same document on the subject of the "Strength, nature and duration of his ties to the Australian community", the following was stated: Despite his criminal past and the offences committed against her, Mr Navoto remains in a committed relationship with his partner, Ms [R]. Their relationship commenced around 2009. Ms [R] suffers from schizophrenia and depression, and Mr Navoto describes himself as her main carer prior to his incarceration, cooking and cleaning for her, ensuring her compliance with treatment, and taking her to appointments, etc. Somewhat ironically given the incidents that led to his incarceration, he describes Ms [R] as a very vulnerable person and that despite the problems in their relationship, he has a deep desire to protect her. Mr Navoto also instructs however that their relationship was extremely difficult, as Ms [R's] illness at times manifested in erratic, suspicious and controlling behaviour that was a source of great frustration to him. His issues with alcohol and his inability to appropriately deal with his anger and frustration are what led to his very serious offending. Nonetheless, Mr Navoto and Ms [R] are committed to their relationship, and hope to have an opportunity to address their problems in a constructive way upon Mr Navoto's release from prison. In addition to Ms [R], Mr Navoto enjoys a close relationship with his cousin, Ilisapeci Davis, who lives in Craigieburn. Mr Navoto has had a number of family members in Fiji pass away in recent years, and Ms Davis is his main remaining contact with his family. 19 In the letter of support of Ms Davis, the applicant's first cousin (the fifth of the above documents), she stated: I believe that the best way forward for Lemeki to overcome his depression, is to remain in Australia where he will get the full support of myself and my Husband. He would also get professional counselling here in Australia and be able to build his life back. Unfortunately, if he was to be sent back to Fiji, he would surely lose contact with his three children and would also not have the support or professional counselling that he could get here in Australia. 20 The Minister's decision began at [11] and [12] with a statement that all material submitted had been considered and with a brief summary of the representations: 11. In undertaking this task, I assessed all of the information set out in the attachments. In particular, I considered Mr NAVOTO's representations and the documents he has submitted in support of his representations regarding why the original decision should be revoked. 12. In the representations/document submitted by or on his behalf, Mr NAVOTO has articulated reasons why the original decision should be revoked, which include: - He has lived in Australia since 2000. - He has three Australian citizen children whom he loves and he states they deserve to have both parents in their lives. - He will do everything to be a better parent, partner and person, to help the community. - He has a partner in Australia with whom he plans to reside if released. They need each other and he was her carer before being imprisoned. - He does not have immediate family in Fiji or anything to go back for. 21 At [13]-[19] of the reasons, there was discussion of the best interests of the applicant's (minor) children. 22 At [20]-[26] of the reasons under the heading "Strength, nature and devotion of ties" the following was stated: 20. In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the strength, nature and duration of Mr NAVOTO's ties to Australia. 21. Mr NAVOTO has resided in Australia for some 17 years, having arrived as an adult, of 22 years. 22. I have given more weight to this consideration as Mr NAVOTO contributed positively to the community through his employment activities from 2001 to 2012 and his volunteering activities, albeit limited. I find that until his offending, Mr NAVOTO had been making a positive contribution to the community through these activities and I have taken this into account. 23. I accept that Mr NAVOTO has some family ties in Australia, in the form of his children, who are discussed above, and his current partner, Ms [R]. Ms [R] was the victim of his domestic violence offence. However he submits that their relationship is ongoing and that they need each other. Ms [R] has mental health issues, namely schizophrenia and depression, and Mr NAVOTO states that he was her main carer before being incarcerated. He adds that despite their past problems, they hope to address their issues in a constructive way. 24. I note Ms [R] has submitted a letter of support in which she states that Mr NAVOTO is a very important part of her life, that they sincerely love each other and want to spend the rest of their lives together and that being separated from him has affected her emotionally and physically. I accept that Ms [R] is in some sense dependent on Mr NAVOTO and strongly wishes to resume their relationship, but I have some reservations about whether this is to her benefit, in view of the fact that he has inflicted serious violence on her on several occasions, as discussed above. Nonetheless, I accept her views as expressed. 25. Other than Ms [R] and his children, Mr NAVOTO has not indicated any relatives in Australia, though a cousin, Ms Ilisapeci Davis, has written to support his revocation request. 26. I have considered the effect of non-revocation upon Ms [R] and, to a lesser extent, his cousin Ms Davis, and accept that those persons would experience some emotional hardship and, in the case of Ms [R], some practical hardship also. I find that Mr NAVOTO has been making a positive contribution to the community through his employment and volunteer activities and I have taken this into account. 23 It is relevant to note at this point that there was no express, or separate, discussion of the fact or nature of Ms R's mental illness. 24 At [27]-[31] of the reasons under the heading "Extent of impediments if removed", the following was stated: 27. In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the impediments that Mr NAVOTO will face if removed from Australia to his home country of Fiji in establishing himself and maintaining basic living standards. 28. I note that Mr NAVOTO suffers from depression and anxiety and takes medication for such. I consider that appropriate treatment and medication for this condition is likely to be available in Fiji, though I acknowledge that it may not be of the same standard as that available in Australia and it may be harder to obtain, as indicated by Ms Davis in her letter. 29. I note Mr NAVOTO submits that he does not have immediate family in Fiji, would not have anything to live for there and would not be able to see his Australian children if he were removed to Fiji. 30. I accept that Mr NAVOTO may experience emotional hardship if he is removed from Australia and thereby separated from his children and partner. However, as a citizen of Fiji he will have access to government support service equal to that of other citizens of that country, though I acknowledge that these may not be of the same standard as available to him in Australia. 31. Given Mr NAVOTO spent significant time in Fiji, I find that he would have developed an adequate knowledge of its cultural and social norms which would facilitate his reintegration to its society. I find that Mr NAVOTO's English language skills would further assist his reintegration to Fijian society, given that English is one of Fiji's official languages. Mr NAVOTO has consistently worked in Australia, and I find that he possesses work skills that would assist him in endeavouring to secure employment in Fiji in order to sustain a basic standard of living. 25 At [32]-[48] of the reasons, there was a lengthy discussion of the protection of the Australian community, the applicant's criminal conduct, and the risk to the Australian community. 26 The Minister's conclusions as to revocation were stated at [52]-[57] of the reasons as follows: 52. In considering, in light of Mr NAVOTO'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 NAVOTO's children Christian, Grace and William. I found that their best interests would be served by the revocation of the original decision. 53. In addition, I have considered the positive contribution Mr NAVOTO has made to the Australian community through his employment and volunteering activities and/or the consequences of non-revocation of the original decision for his partner and cousin. 54. 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 very serious nature of the crimes committed by Mr NAVOTO, some of which are of a violent nature. 55. Further, I find that the Australian community could be exposed to significant harm should Mr NAVOTO reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr NAVOTO. 56. 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 NAVOTO represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children, as a primary consideration, and any other considerations as described above. These include his, employment, volunteer and familial ties to Australia, and the hardship Mr NAVOTO, his partner and to a lesser extend his cousin will endure in the event the original decision is not revoked. 57. Having given full consideration to all of these matters, I am not satisfied, for the purposes of s501CA(4)(b)(ii), that there is another reason why the original decision under s501(3A) to cancel Mr NAVOTO'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 NAVOTO's Class BC, Subclass 100 (Spouse) visa remains cancelled. 27 By an amended application for review of a migration decision filed 18 October 2018, the applicant set out the following grounds of review (as amended at the hearing): 1. In exercising the power under s 501CA(4), the respondent did not consider (or give any real consideration to) the representations made by the applicant seeking revocation of the original mandatory cancellation decision. Particulars of representations 1.1 Representations in relation to the mental health of the applicant's wife namely that she has schizophrenia and depression and he was her carer 1.2 Representations in relation to the mental health hardship the applicant's departure from Australia would have on his wife. 1.3 Representations in relation to him having no family ties in Fiji such that he would be homeless and without physical and emotional support. 1.4 Representations that he could not get professional counselling for his mental illness in Fiji. 1.5 Representations that has no family ties or support networks in Fiji and would be left homeless if returned to Fiji. 2. In exercising the power under s 501CA(4), the respondent made findings of fact for which there was no evidence and which were contrary to the evidence Particular of finding of fact 2.1 At [28] of the Statement of Reasons, the respondent states that appropriate treatment for the applicant's mental illness is likely to be available in Fiji. Ms Davis states that he could not access this treatment. 2.2 At [31] of the Statement of Reasons that he has work skills that would assist him to secure employment in Fiji in order to sustain a basic standard of living 3. The non-revocation decision was unreasonable in the sense identified in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Submissions and consideration 28 The applicant referred in written submissions to a tension in the authorities governing the obligation of the Minister to consider the representations that have been invited under s 501CA(3). 29 The first respondent accepted that where an applicant makes representations in response to an invitation under s 501CA(3), he or she is required to consider the reasons advanced in those representations in favour of revocation. 30 As I refer to below, at the hearing the parties came to broad agreement as to the proper approach. It is helpful, however, to address the authorities in this area. 31 Section 501CA is in the following terms: Cancellation of visa - revocation of decision under subsection 501(3A) (person serving sentence of imprisonment) (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person. (2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers: (a) would be the reason, or a part of the reason, for making the original decision; and (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member. (3) As soon as practicable after making the original decision, the Minister must: (a) give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. (5) If the Minister revokes the original decision, the original decision is taken not to have been made. (6) Any detention of the person that occurred during any part of the period: (a) beginning when the original decision was made; and (b) ending at the time of the revocation of the original decision; is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention. (7) A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7. 32 From the terms of sub-ss (3) and (4), it is tolerably plain that the Minister must consider the representations he received pursuant to the invitation that he or she was required to give. The structure of subs (4) is such that there is a relationship between the satisfaction of the Minister and those representations. 33 There have been a number of Full Court and single judge decisions in which this mandatory character of the representations has been expressed. The call for some explication arises often because applicants minutely examine reasons and point out some aspect or aspects of the material put before the Minister that has not been expressly or separately referred to in the reasons. 34 In BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 at 470 [62], Bromberg and Mortimer JJ referred, with approval, to a passage in the judgment of Tracey J in Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [42]. In that paragraph Tracey J, in discussing representations made after an invitation under s 501CA(3), said: … If, in making representations, the applicant provides information to the Minister, relating to his or her personal circumstances, and that information is critical and relevant to the applicant's case the Minister is bound to consider it. … 35 In Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 Robertson J said (in obiter) at [50]: … While I accept that under s 501(4) representations as a whole constitute a mandatorily relevant consideration, I do not accept that any particular statement in the representations should be so characterised. … 36 In Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68, the Full Court (in obiter) said (about representations under s 501CA(4)) at [139]: … However that is not to say that each representation made gives rise to a mandatory relevant consideration. 37 In Viane v Minister for Immigration and Border Protection [2018] FCAFC 116, Rangiah J (with whom Reeves J agreed) drew the distinction between what may or may not be a mandatory consideration and a denial of procedural fairness by failing to address a "substantial, clearly articulated argument relying upon establishment facts": see Viane at [24]-[25] and the reliance on Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at 394 [24] (Gummow and Callinan JJ, with whom Hayne J agreed at 408 [95]); approved by the whole Court in Plaintiff M61/2010E v Commonwealth of Australia [2010] FCA 41; 243 CLR 319 at 356 [90]; and to like effect NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at 20 [63] cited by Rangiah J: It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. Rangiah J then referred to BCR16 and the approval by Bromberg J and Mortimer J of Tracey J's comment (set out above) in Picard. 38 Rangiah J then noted the approach that had been taken in various cases dealing with jurisdictional error, where definitional or textual distinctions, such as between "claims" and "evidence" had been eschewed in favour of an assessment of the circumstances of the case, the seriousness or importance of the material that had not been addressed and so the seriousness of the error: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at 130-131 [111]-[112]; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at 451 [68]-[70]; and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at 78-80 [52]-[56]. 39 As recognised clearly in MZYTS (drawing on Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at 175 [27]-[28] and SZRKT), jurisdictional error from a failure to take into account a relevant (that is, mandatory) consideration in the Peko-Wallsend sense is distinct from (though may overlap with) jurisdictional error in which, in the circumstances, there has been a failure to take account of such important material as reveals that the statutory task has not been performed or that natural justice has not been afforded. These cases (for example, and in particular, the discussion in SZSRS 309 ALR at 78-79 [53]-[54]) illustrate the danger of overly-precise definitional taxonomy in the evaluation and articulation of the exercise of statutory power in the various circumstances in which it falls to be considered and in discussing jurisdictional error. Clearly articulated bases of jurisdictional error can be, to a point, defined or clearly described: see Craig v South Australia [1995] HCA 58; 184 CLR 163 at 176-180; but the search for comprehensive definitions and complete taxonomical categorisation of jurisdictional error is a false enquiry: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 3 [2] and 5-6 [11]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 309 ALR 408 at 423-424 [59]; and Hossain v Minister for Immigration and Border Protection [2018] HCA 34. 40 Rangiah J concluded in Viane at [30]: If the Minister overlooks a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked under s 501CA(4) of the Act, which if accepted would or could be dispositive of the decision, the Minister's error may be characterised as a jurisdictional error. Further, if what is overlooked is better characterised as "information" (or "material", or "evidence"), rather than an "argument", there may be jurisdictional error where the "information" is sufficiently important, such that the error is serious enough to be described as jurisdictional. It is not essential that either the argument or information is "critical" in the sense that its acceptance by the Minister would necessarily have resulted in a different outcome. 41 Colvin J also discussed the question in Viane. At [70] his Honour said: There is no basis for a necessary implication from the subject-matter, scope and purpose of the provisions in the Migration Act that any matter raised in representations is required to be taken into account (that is, it is a 'mandatory relevant consideration') such that a failure to take the matter into account (as distinct from a failure to consider the matter at all) is a failure to undertake the statutory task and therefore a jurisdictional error: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40. That is why each matter raised by representations is not a mandatory consideration: Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 at [139]. 42 After further discussion, Colvin J said the following at [75]-[79]: 75. It follows from the above that a failure to consider significant matters in the representations would be a failure to conform to the statute. Further, it would be a failure to conform to a part of the statute that must be met in order for there to be a valid exercise of power. The statutory requirement for the Minister to invite representations must lead to the conclusion that if representations are made as to significant matters then the Minister must consider whether to revoke the original cancellation and do so by considering the representations as to those matters. Jurisdictional error, in the sense relevant in the present case, consists of such a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by the Migration Act: Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [23]-[26]. 76. A failure to conform to a statutory condition that must be met in order for there to be a valid exercise of power invalidates the exercise of power: Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30 at [83]-[91]. This is not a matter of natural justice. It is a requirement of the statute. If a complaint that the Minister did not consider a significant matter raised by representations is made out then there is jurisdictional error in the making of the decision of the Minister to refuse to exercise the discretion under s 501CA(4) and the decision is invalid. There is jurisdictional error because a valid refusal to revoke cannot be made by the Minister unless all matters that may be significant for a Minister forming the required state of satisfaction under s 501CA(4)(b) that are raised by way of representations have been considered by the Minister. 77. For the same reasons, the failure to consider each substantial complaint that is raised by way of representation may also be a failure to afford procedural fairness. A failure to respond to a substantial, clearly articulated argument relying on established facts has been held to be a failure to accord natural justice: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24], [95]. 78. This is the way in which the matter is put for Mr Viane in this appeal. 79. In BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 at [62] it was recognised that a case where the complaint was a failure to consider a matter that had been advanced as part of the representations as to why there is 'another reason' for the purposes of s 501CA(4) can be characterised as either a denial of procedural fairness or as a failure to carry out the required statutory task. 43 These considerations reflect the relatedness and overlapping of bases of jurisdictional error. 44 The Full Court in Hay v Minister for Home Affairs [2018] FCAFC 149 considered the issues again. White J and Moshinsky J agreed in the reasons of Colvin J. Under the heading "Relevant principles" Colvin J wrote: 9. In Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [56] Robertson J considered an application to review a decision under s 501CA not to revoke the cancellation of a visa after representations were made seeking revocation. His Honour observed that the representations as a whole, but not each matter raised within them, were mandatory relevant considerations. The correctness of this observation in Goundar was left open in Parker v Minister for Immigration and Border Protection [2017] FCAFC 115 at [16]. In Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [42], Flick J stated that there may be circumstances where there is a failure to properly take into account the representations as required by s 501CA if 'one or other - but not all - of the discrete matters raised' for consideration by the Minister have been addressed. 10. In Viane v Minister for Immigration and Border Protection [2018] FCAFC 116, a decision by the Minister not to revoke under s 501CA was set aside on the basis of a failure by the Minister to consider a matter that had been advanced in representations, namely the hardship to Mr Viane's partner if she moved to Samoa with him as a consequence of the revocation of his visa. Rangiah J (Reeves J agreeing) held that if the Minister overlooks 'a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked under s 501CA(4) which if accepted would or could be dispositive of the decision, the Minister's error may be characterised as jurisdictional error': at [30]. 11. In reaching the same result in Viane, I held at [66] that 'as the making of representations about the revocation of the original decision is a condition that must be met before the statutory power to revoke is enlivened, there is a statutory obligation on the part of the Minister to consider whether the required state of satisfaction is met by reference to the material presented in the representations'. Therefore, 'a state of satisfaction formed without considering each of the matters that are raised in the representations in a manner which identified them as significant would be a breach of the statutory requirement to consider the representations': at [72]. It would be a failure to conform to a part of the statute that must be met in order for there to be a valid exercise of power: at [75]. 12. Recently, in Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [24], Kiefel CJ, Gageler and Keane JJ explained jurisdictional error in a statutory decision-making process as referring to 'a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking the characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it'. Further, statutes ordinarily incorporate a threshold of materiality in the event of non-compliance before there will be a failure to meet the requirements of the statute in a manner that will be jurisdictional: at [29]. The threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if compliance 'could have made no difference to the decision that was made in the circumstances in which the decision was made': at [30]. 13. As I have noted, under s 501CA(3) there is a statutory obligation to invite representations to the Minister about revocation of a decision to cancel a visa under s 501(3A). If representations are made, the Minister may revoke the cancellation if the Minister is satisfied, relevantly for present purposes, that there is 'a reason why the original decision should be revoked'. If representations are made then the Minister must form the required state of satisfaction after having regard to those representations. The formation of that state of satisfaction is a precondition to the valid performance of the statutory task of deciding whether to revoke the cancellation of the visa. 14. However, it is a question of statutory construction as to whether the precondition is met if the Minister has regard to the representations in a general sense or whether the Minister must have regard to particular matters raised in order to conform to the statute. If the latter, then the question arises whether the precondition that must be met is to the effect that the Minister must consider only 'a substantial, clearly articulated argument' or a 'significant' matter or each and every matter. Whatever the requirement, if the Minister's state of satisfaction is formed without regard to particular matters that must be considered then there is a failure to comply with the statute. Further, Hossain makes clear that even if that requirement is not met, it is only if the failure is of a kind that meets the 'threshold of materiality' that the required state of satisfaction will not be formed in conformance with the statutory requirement with the consequence that there will be jurisdictional error. 15. For the reasons stated below, it is not necessary in this case to consider the precise type of failure to consider a matter raised in representations that may give rise to jurisdictional error in the formation by the Minister of the required state of satisfaction. Nor is it necessary to consider the precise ambit of the threshold of materiality that might apply before there is any such error. That is because each of the seven matters raised by Mr Hay was considered by the Minister or, if not considered, was not raised in the representations made to the Minister. 45 Shortly thereafter, in Minister for Home Affairs v Buadromo [2018] FCAFC 151, the Court (Besanko, Barker and Bromwich JJ) said the following at [41]: 41. The starting point is the terms of s 501CA(4) of the Act. One of the matters which engages the power to revoke a prior cancellation is that the person given the invitation under s 501CA(3) by the Minister has made representations to the Minister. Although the subsection does not say so in express terms, the representations must be considered by the Minister. They are, as the Minister accepted, a mandatory relevant consideration (Tickner v Chapman [1995] FCA 987; (1995) 57 FCR 451 (Tickner v Chapman)). However, they are a mandatory relevant consideration as a whole and not as to the individual statements contained in the representations. In Goundar v Minister for Immigration and Border Protection [2016] FCA 1203, Robertson J said (at [55]-[56]): It is not necessary to determine the issue of whether the applicant's representation as to the risk of retribution was a mandatory relevant consideration. That conclusion does not follow from Picard. It is correct to say that in that case the learned judge stated at [42] that if, in making representations, the applicant provided information to the Minister, relating to his or her personal circumstances, and that information was critical and relevant to the applicant's case the Minister was bound to consider it. As noted in BCR16 at [76], those observations in Picard were made in the context of procedural fairness obligations owed by the Minister under s 501CA(4). In any event I do not read Picard at [42] as standing for the proposition that each statement in the representation is a mandatory relevant consideration. As stated by the Full Court in Price v Elder [2000] FCA 133; 97 FCR 218 at [13], where a discretion is unconfined by the terms of the statute, a court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he or she is bound to do so is to be found in the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40;162 CLR 24 at 39-40. While I accept that under s 501CA(4) representations as a whole constitute a mandatory relevant consideration, I do not accept that any particular statement in the representations should be so characterised. As presently advised, I would distinguish Htun at [42] on the basis that both the text and context of the statutory provisions are quite different. We respectfully agree with those observations. 46 This clear statement removes (once and for all) from the landscape the proposition that each matter put in the representations is a mandatory consideration. This had been accepted by Rangiah J and Colvin J in Viane ([2018] FCAFC 116 at [22]-[24] and [70]) and by the Full Court in BHA17 [2018] FCAFC 68 at [139]). It was accepted by both sides in argument in this proceeding. 47 From the above discussion it can be taken that a failure to consider or take into account matters of sufficient importance in the representations may amount to jurisdictional error either because it cannot be said that the required state of satisfaction has been reached in accordance with the section in all the circumstances, or because not to take such an important matter into account reflects a failure to take into account all the representations. One should be cautious about over reliance on textual taxonomical precision in this area. There will be jurisdictional error if material important in the representations has not been taken into account so as to make the purported exercise of the power not one that can be seen or characterised as being based on, or having taken into account, the representations as a whole. An evaluation of this will be context and circumstance specific. Textual formulae are of little assistance. 48 There is no need to discuss the relationship of these considerations with natural justice, and the effect of any provision which seeks by statute to modify or codify such principles. 49 The parties were in broad agreement as to the proper approach, which agreement reflected the approach to which I have referred at [47] above. 50 As I said in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3]: 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] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [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. 51 The question is not the formal mentioning of matters, though, of course, the expression of the matter by the Minister is central to an evaluation of what she or he did. It is the assessment of the reasons and the approach taken in the context of the representations, the consequences of the decision and all the circumstances.
Ground 1 52 Here, for the following reasons, it cannot be concluded that the Minister has not engaged with the representations in a way that reflects his taking into account and giving real consideration to the representations by the applicant, in particular in respect of the matters relied upon underground 1. 53 The focus of the argument was upon the asserted failure to engage with two areas: Ms R's mental illness (grounds 1.1 and 1.2) and Mr Navoto's absence of family ties or support, including counselling, in Fiji, resulting in homelessness (grounds 1.4 and 1.5). 54 As to Ms R's illness, Ms Lo Piccolo had to confront [23]-[26] and [56] of the Assistant Minister's reasons (set out above). In those paragraphs, there was an express recognition of her mental health issues, express reference being made to her schizophrenia and depression, of Mr Navoto having been her main carer, of their hope to address their personal and alcohol issues, and that the removal of Mr Navoto will cause "some emotional and practical hardship". 55 Ms Lo Piccolo submitted that the decision failed to reflect any real engagement with the seriousness of the issue facing Ms R. With respect I cannot agree. There is a difference in language from the submission - "trauma" - to the decision - "hardship" - and there is not a reference to all the material in the representations which deals with the subject of ground 1. Nevertheless, one cannot conclude from that alone there was no real consideration of this issue. The reasons, on their face, reveal a real engagement. The Minister did not fail to consider properly Mr Navoto's representations about his and Ms R's mental and physical wellbeing. Rather, the Minister seems to have come to the view that the seriousness of Mr Navoto's conduct towards Ms R and all the circumstances of the offending were a strong countervailing weight against revocation of the mandatory cancellation of the visa, even taking into account the hardship that would be suffered by Mr Navoto, Mr R and Ms Davis should Mr Navoto be removed from Australia. 56 As to Mr Navoto's ties to, and support (including government support services) and possible homelessness in, Fiji, once again, the Minister adverted to his lack of family in Fiji: see [28]-[31]. In related findings (see [31]) the Minister commented upon Mr Navoto's capacity to work. It was submitted that there was no qualitative engagement with the various matters. With respect, it cannot be concluded that real consideration was not given to Mr Navoto's lack of ties in Fiji and the support he may or may not receive there. There was a finding about Mr Navoto being able to sustain a basic standard of living, which to a degree dealt with any homelessness issue. There was a sufficient confronting of the human reality of this hardship. 57 Once again, the determination of the question is one of evaluation of the reasons in the context of all the circumstances, in order to assess whether there was a qualitative failure of substance to engage with or take into account important representations made. I do not see in the reasons any ground to conclude that Mr Navoto's lack of family ties or lack of support in Fiji and homelessness were not substantively considered.
Ground 2 58 The second ground (ground 2.1) was that a finding of fact was made about the availability of appropriate treatment and medication in Fiji for Mr Navoto's depression and anxiety, albeit perhaps not of the same standard as in Australia, without evidence. 59 It was submitted that Ms Davis' letter (see [19] above) was that he could not get counselling in Fiji - not that it would be of a lesser quality or standard. 60 There are two answers to the submission. First, even if there was an absence of evidence, the error was not jurisdictional. I accept the submission made by Mr Hosking, who appeared for the Minister, that the references in the representations to Mr Navoto's anxiety and depression were never put as a representation that he would suffer harm or hardship in Fiji by reason of anxiety or depression that could not be treated there. Rather, his anxiety and depression were referred to throughout his submission as something that had contributed to, or explained, his offending in the past: see the Court Book at 50, 60, 64, 78, 84, 96, 97 and 100. Thus, even if there was an absence of "evidence" for the finding, it was not a fact central to how the applicant had put his case to have the cancellation revoked. On this basis, on any view of the proper "test", the point was not sufficiently central for there to be jurisdictional error: cf Australian Meat Industry Employees' Union v Fair Work Australia [2012] FCA 85; 203 FCR 389 at 413 [92]; Australian Postal Corporation v D'Rozario [2014] FCAFC 89; 222 FCR 303 at 309 [16], 324-325 [66]-[67] and 332-333 [108]-[109]; Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28 at 48 [46]; Buchwald v Minister for Immigration and Border Protection [2016] FCA 101; 242 FCR 65 at 76 [39]; Schmidt v Minister for Immigration and Border Protection [2018] FCA 1162 at [31]; Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [46]. 61 In any event, there was no absence of evidence or material. 62 First, the letter of Ms Davis is capable of being (and is, in my view, better) construed as the Minister did implicitly in [28]. If a document included as part of the representation is reasonably capable of more than one construction, a decision-maker does not necessarily commit error in understanding it one way and acting on that understanding. 63 Secondly, it is a statement of a kind about which a Minister of the Australian Government could reasonably be expected to have some general knowledge. An absence of "evidence" should be understood as an absence of relevant material, including knowledge likely to be indirectly gained from accumulated knowledge of governmental affairs. The general economic and social condition of a familiar country in the region such as Fiji is something a Minister can be taken to be aware of. 64 For these reasons the application should be dismissed with costs. 65 The Court is grateful for Ms Lo Piccolo's pro bono assistance. She put everything that could properly be put on behalf of Mr Navoto. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.
Navoto
Minister for Home Affairs
(2013) 249 CLR 332
(1986) 162 CLR 24
(2015) 257 CLR 22
(2017) 248 FCR 456
(1995) 57 FCR 451