Smith v Minister for Home Affairs

The grounds of the application 10 The grounds of the application for judicial review, as amended in the course of the hearing, were as follows: Failure to take into account relevant consideration grounds 1. The Respondent fell into jurisdictional error by failing to take into account a relevant consideration namely that the Applicant's 12 year old son Corey could only live with him (as the only alternative to State care or incarceration) because he could not live at home with his mother due to an AVO and/or his past verbal and physical abuse of his mother which had resulted in his arrest and incarceration in the Reiby Juvenile Detention Centre. 2. The Respondent fell into jurisdictional error by failing to take into account a relevant consideration namely the interests of the Australian community, in ensuring that Corey was provided with accommodation and care by the Applicant instead of being placed in State care or incarceration. 3. The Respondent fell into jurisdictional error by failing to take into account a relevant consideration namely the interests of his mother and minor siblings, in ensuring that Corey was provided with accommodation and care by the Applicant, rather than resuming living with his mother at some future time in his minority (if this became a legal option after expiry of the AVO), given that Corey already has a history of criminal behaviour and in particular of violence to his mother and minor siblings, was subject to an AVO precluding him from living with his mother. 3A. The Respondent erred by failing to infer that Corey could not continue to safely live with his mother without unacceptable danger to her and her other children from the letter at CB 146, this being the only inference on that matter available from the letter and not displaced by other material before him. 3B. The Respondent erred by failing to infer that Corey would be required to go into State care or incarceration should the Applicant be deported, from the letter at CB 146, this being the only inference on that matter available from the letter and not displaced by other material before him. 3C. As a result of failing to make either or both of the inferences in 3A or 3B above, the Respondent failed to take into account those facts pleaded in 3A and 3B which should have been inferred in either case, and as a result failed to take into a (sic) account (by failing to make either, or both, of these inferences) these matters as mandatory relevant consideration (sic) or as material matters critical and relevant to the Applicant's case. 3D. As a result of the error in 3C above, the non-revocation decision is vitiated by jurisdictional error. Illogical and irrational reasoning grounds 4. The Respondent fell into jurisdictional error by reaching the decision that there was not another reason within the meaning of s501CA(3A)(4) (sic) of the Migration Act 1958 why the original decision should be revoked by a process of illogical and irrational reasoning which rendered the decision legally unreasonable in that he disregarded the interests of the Australian community in ensuring that Corey was able to live with and be cared for permanently by the Applicant, instead of being placed in State care or incarceration, yet at the same time purported to make the decision for the protection of the Australian community. 5. The Respondent fell into jurisdictional error by reaching the decision that there was not another reason within the meaning of s501CA(3A)(4) (sic) why the original decision should be revoked by a process of illogical and irrational reasoning which rendered the decision legally unreasonable in that he did not reason that as Corey had only one alternative to State care or incarceration, which was to be cared for and live with the Applicant on a permanent basis (because an AVO precluded him living with his mother, and because Corey's history of violence to her and his minor siblings created a risk for their safety if he were to do so), it was in the interests of his mother and his minor siblings that the Applicant remain in Australia to care for their son. 6. The Respondent fell into jurisdictional error by reaching the decision that there was not another reason within the meaning of s501CA(3A)(4) (sic) why the original decision should be revoked by a process of illogical and irrational reasoning which involved, which involved (sic) proceeding on the basis that the importance of Corey's living with the Applicant was merely a matter of being socially "reunited with" the Applicant so that Corey could "maintain and develop [his] relationship with" the Applicant, rather than being his only legal and practical alternative to State care or incarceration. 7. The Respondent fell into jurisdictional error by reaching the decision that there was not another reason within the meaning of s501CA(3A)(4) (sic) why the original decision should be revoked by a process of illogical and irrational reasoning which involved giving the intellectual disability of the Applicant's daughter Jessica less weight than it would otherwise have been given by him on the basis that the advice of the FACS worker Mr Long about this matter was not corroborated by other sources, without either contacting the Applicant to ask specifically about that matter or taking up the express invitation in Mr Long's letter of 31 July 2017 (CB 146 and 461) to obtain further information about that matter. Duty to Inquire Grounds 8. The Respondent fell into jurisdictional error by reaching the decision that there was not another reason within the meaning of s501CA(3A)(4) (sic) why the original decision should be revoked by unreasonably failing to obtain material that was readily available and centrally relevant to the decision, by means of contacting either the Applicant, Mr Long (or other officer of facts) and specifically asking about whether there were any legally or practically available alternatives for Corey's living and care arrangements (apart from living with the Applicant) if his father were to be deported. Particulars If the Applicant, or Mr Long or Child Protection Manager Catherine Drobiszewski had been contacted on the number provided at CB 146 and 461, the Respondent would have been provided with Corey's Children's Court Support Plan filed on 16 February 2018 by Ms Drobiszewski in the Children's Court of New South Wales and the other documents including an AVO precluding Corey from living with his mother (as annexed to the affidavit of the Applicant sworn on 11 September 2018). 9. The Respondent fell into jurisdictional error by reaching the decision that there was not another reason within the meaning of s501CA(3A)(4) (sic) why the original decision should be revoked by unreasonably failing to obtain material that was readily available and centrally relevant to the decision, by means of contacting either the Applicant, or Mr Long (or his named colleague, or other FACS officer) to obtain further information about Jessica's intellectual disability, in the face of the express invitation in Mr Long's letter (CB 146 and 461) to obtain further information. Particulars If the Applicant, or Mr Long or Child Protection Manager Catherine Drobiszewski had been contacted on the number provided at CB 146 and 461, the Respondent would have been provided with further information about Jessica's intellectual disability.

The evidence 11 The applicant sought to read an affidavit affirmed by him on 11 September 2018. In that affidavit, the applicant seeks to depose to what he would have done "in the days and weeks before 24 May 2018, if the Minister had contacted me and asked me specifically for further information about whether my son Corey could go back to living at home with his mother…". Annexed to the affidavit are a number of documents which the applicant says he would have given to the Minister. In that affidavit the applicant also deposes to what he would have done "in the days and weeks before 24 May 2018, if the Minister had contacted me and asked me specifically for further information about my daughter Jessica's intellectual disability." A number of documents on that subject are also annexed. 12 Counsel for the applicant accepted that this material did not go to the issue of the Minister's failure to take into account relevant considerations as the material was not before the Minister but submitted that it went to the heart of the issue of what was in the best interests of the applicant's two children, Jessica and Corey. 13 Counsel for the Minister objected to the affidavit on the ground of relevance, submitting that the affidavit may be relevant to the failure to inquire point and that the affidavit could be admitted subject to relevance. The Minister expressly did not submit that, if he was under a legal duty to make further inquiry, that inquiry would not have yielded a useful result. 14 So as to allow the full submissions to be put on behalf of the applicant, I deferred ruling on the admissibility of this affidavit. I said that I would make a ruling in the course of my final judgment and indicated that a ruling I may make was to admit the affidavit but on a limited basis. 15 Pursuant to s 136 of the Evidence Act 1995 (Cth) I propose to admit the applicant's affidavit but limit the use to be made of it so that it is evidence only of what the applicant says he would have done if asked by the Minister. This is to meet the objection in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 at [26] that further inquiry would not have yielded a useful result. To be clear, I do not admit this affidavit as evidence of the facts as to do so would tend to lead the Court into merits review and would be contrary to the principle that evidence is not admissible in judicial review proceedings to contradict findings of fact by the decision-maker: some authorities to this effect are referred to in the decision of the Full Court in Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93; 251 FCR 23 at [52]-[55]. I refer in this respect to the finding by the Minister at [14] that the children live with their mother, that finding being made in light of the material put forward by the applicant to that effect, for example at CB 101. I also note in this respect that the applicant, in his representation to the Minister reproduced at CB 105, answered no to the question whether there were any Court orders that related to his children. Examples of court orders given in that question were "custody arrangements… or care arrangements with the Department of Human Services etc". 16 I note also that in any event the relevance of the affidavit depends on the applicant succeeding on his ground that the Minister was under a duty to inquire. 17 The Minister did not lead any evidence on the judicial review application.

The parties' submissions 18 The applicant's submissions were divided between the legal errors asserted in relation to the Minister's consideration of the son Corey and those in relation to his daughter Jessica. Corey was born on 26 October 2005. Jessica was born on 1 September 2002. 19 In relation to Corey, the applicant submitted that while the Minister did conclude, at [13], that it was in the best interests of the applicant's children for the original decision to be revoked, and while considering that Corey wanted to live with his father and that the applicant had agreed to look after Corey full time if released, the Minister's reasons showed no record of having considered that this was Corey's only domestic option, apart from State care or incarceration (as Ms Eisbach, who was now in another de facto relationship, could not have Corey living with her, due to Corey's past violence against her which have resulted in a Domestic or Apprehended Violence Order (DVO, termed an AVO in the further amended originating application) against him that remains on foot). 20 The applicant submitted that the Minister's reasons recorded consideration of the letter from Mr Long about Corey, but the Minister never took the obvious step of calling Mr Long for further information in accordance with the invitation in Mr Long's letter. If he had made that call; or asked the applicant for further information about Corey's situation, these centrally relevant and critical facts and information would have been provided by one or another, or both. The Minister did not take into account the fact that Corey, for the remainder of his minority at least, would either be living with his father, the applicant, or, if not, in State care or incarceration. That was the realistic universe of options for this child, and the Minister did not have regard to that fact. 21 The applicant submitted that this inevitably amounted to a failure to have regard or give meaningful consideration to the best interests of Corey, consistently with Direction No. 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA made by the Minister on 22 December 2014 (Direction 65), or otherwise, in particular of the extent to which the applicant was likely to play a positive role in the future "including any Court orders relating to parental access and care arrangements" and the likely effect separation would have on the child and whether there were other persons who already fulfilled a parental role in relation to the child (Clause 13.2(4)(b), (d) and (e) of Direction 65). 22 The applicant submitted that because of the Minister's failure to consider the DVO, the fact that Corey's mother could not care for Corey (referring to Annexure RLS-1, pages 4, 11 and 12 to the applicant's affidavit of 11 September 2018) and the fact that if the applicant were deported, Corey would be in State care or incarceration, the mandatory relevant considerations listed in paragraphs 1, 2 and 3 of the amended originating application had not been considered. 23 Put another way, the applicant submitted, the Minister's reasoning was illogical or irrational in that he appeared to consider, at [20], the significance of the applicant's presence in Australia to Corey as being merely the ability to maintain and continue to develop his relationship with him. This was a significant misdescription and fell so far short of recording the facts concerning Corey's best interests and the impact on him and Australian society as to fail to consider various relevant matters. 24 The applicant further submitted that in not making the obvious inquiry about Corey, as invited by Mr Long, the Minister failed to obtain the material annexed to the applicant's affidavit of 11 September 2018. This included Court orders, namely the DVO and other information establishing that Corey could not legally or safely for the mother, Ms Eisbach, live with her, that she was pregnant and had a new partner and that Corey's only domestic option was living with the applicant. The information not requested, and therefore not obtained, showed that for Corey the choice (if the applicant was deported) as to living arrangements is non-existent and he (Corey) would go into State care, or incarceration. Despite this, the Minister found that there was not another reason for the revocation of the original visa cancellation decision, and completely missed the crucial fact that if the applicant was deported, Corey would be in State care or incarceration (ground 5), and appeared to regard the importance of the applicant's non-deportation to Corey as a matter of relationship maintenance (see ground 6). As a result, the applicant submitted that the Minister's decision was illogically and irrationally reasoned, and legally unreasonable in result. 25 The applicant's submissions then turned to relevant considerations, grounds 1, 2 and 3 of the further amended originating application. 26 The applicant submitted the Minister had not engaged in a meaningful consideration or active intellectual process in relation to considering the impact on Corey and at [19] and [20] of his decision had regarded the issue as one of "maintaining a relationship" with the applicant. This demonstrated a failure to intellectually engage with the problem at hand, which was that if the applicant went, Corey would grow to adulthood in State care or incarceration. The fact that the applicant's deportation to the UK would consign his son to this fate was not considered at all, or at any level, by the Minister. 27 Importantly, the applicant submitted, even on the material before the Minister, the fact that Corey would not be able to live with his father if deported and had been violent in the home was squarely raised, clearly requiring an inference to be drawn that he could not safely live with his mother and minor siblings, and his incarceration in juvenile justice centres was required (raising the choice between living with his father versus State care or incarceration) (referring to the letter from Mr Long). The applicant submitted that this failure to intellectually engage was a failure to consider a relevant matter: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [45]. 28 The applicant submitted that the Minister also failed to consider the best interests of Corey, due to the deficient consideration of whether or not the applicant was likely to perform a positive role in his life in the future. This aspect of the best interests of the child was required by Direction 65, and the Minister at [13] of his reasons acknowledged that the best interests of minor children were relevant considerations. The Minister did not consider the likelihood that the positive role would be as the only person with whom Corey could live on a domestic basis, as an alternative to State care or incarceration. Regarding it as important for Corey to be "reunited" with the applicant to resolve his current behavioural and psychological issues, at [19], did not consider the critical information that in the short, medium and long term, Corey would only be able to live with the applicant. 29 The applicant submitted that the Minister was able to infer from the material which was before him, particularly Mr Long's letter of 31 July 2017, that Corey could not live in the home with his mother due to his violent behaviour, and the fact that he was placing her very young children from another partner at risk. Corey had come to the attention of police for his violent behaviour, and, therefore, other domestic living arrangements needed to be found. The letter documented that appropriate living arrangements had been found, which was living with the applicant, his father, and was the subject of an agreement. The applicant submitted that the Minister was able to infer that there was no other domestic living arrangement available to Corey on the face of that letter. The experts dealing with Corey in this matter of his future housing and living arrangements indicated one alternative to State care and incarceration which was Corey living with the applicant. The applicant submitted the Minister had completely failed to grapple at an intellectual level, as required, with this matter, the matter raised in ground 1, and had instead dealt with this matter on the level of it being of psychological benefit and behavioural benefit for the applicant to remain in the country and to be reunited occasionally or to be able to develop the relationship, it was said, between the father and the son. 30 The difficulty with this submission, that there was a jurisdictional error in failing to grapple intellectually with a matter that was no more than an available inference which the Minister did not draw, led to the further amendment of the amended notice of appeal by way of adding grounds 3A-3D, set out at [10] above. 31 The applicant submitted in support of those grounds that the only available inference from Mr Long's letter was that the only domestic living arrangement available to Corey was based on the agreement with the applicant, his father, as an alternative to State care or juvenile detention. It was put that the letter on its face necessarily ruled out the possibility of Corey living with his mother. 32 The applicant also submitted, in support of his grounds 4-6, the failure to engage with the consequence of the applicant's deportation for Corey (State care or incarceration) resulted in a legally unreasonable decision, by reason of illogicality and irrationality. Paragraphs [19]-[20] of the Minister's decision, in particular, revealed this illogicality. The Minister failed to appreciate that the importance of the applicant remaining in Australia to Corey was not simply a matter going to "being reunited" with his father or addressing his short term or current behavioural issues, but of his whole future - and whether he would go into State care or incarceration or not. The applicant submitted that the Minister's failure to grasp this point made his decision so lacking in common sense or plainly unjust, having regard to the terms, scope and purpose of the statutory power which was about the protection of the Australian community (and, as structured by Direction 65 and the framework the Minister himself set out in his reasons, Australian minors in particular) as to be outside the range of lawful outcomes of the exercise of the power in the present circumstances: Minister for Immigration and Border Protection v Stretton [2016]; FCAFC 11; 237 FCR 1 at [11] (Allsop CJ). 33 The applicant submitted it beggared belief that the Minister had decided that there was no other reason not to revoke the deportation of a 12 year old boy's father to the UK, without understanding and engaging with the fact that he represented the boy's only remaining chance of a home and normal home life apart from State care or incarceration. The applicant submitted that in this field of decision-making, concerning the best interests of minor children, this was a truly Kafkaesque decision that no reasonable decision maker in the Minister's position could have reached. It was really quite absurd to suggest that the best interests of the child were considered, when the Minister failed to consider this fundamental matter. 34 As to the applicant's daughter, Jessica, the applicant submitted the Minister also reasoned irrationally and illogically, in relation to the impact on and best interest of Jessica, by treating the advice provided in the representation that she had an intellectual disability as a matter about which there was a lack of further information and not contacting Mr Long at FACS (who mentioned this matter in his letter and invited further requests for information), or the applicant. In addition, the failure to make an inquiry of Mr Long or the applicant about Jessica also exhibited illogical and irrational reasoning (the Minister downplaying the weight to be given to Jessica's intellectual disability apparently because it had not been independently corroborated as a fact, but at the same time refraining from calling Mr Long of FACS) was also a failure to obtain centrally relevant or critical information to the decision (being a matter going to the heart of the best interests of a child, a matter emphasised as a consideration in Direction 65). 35 In relation to ground 7, the Minister's finding at [18], which was not to give Jessica's intellectual disability extra weight because it had not been corroborated by further information (when Mr Long's letter expressly invited the Minister to seek it) was also legally unreasonable as not being a decision a logical or rational decision-maker could reach, on the material (Mr Long's letter). There was no logical explanation, the applicant submitted, for the call to Mr Long not to have been made - the decision-maker was presented expressly with an invitation to obtain the further information he found lacking. It was irrational in those circumstances to decry the absence of that further information. This finding was illogical and irrational in the sense considered in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [23]-[24] (Gummow and Kiefel JJ) and legally unreasonable in the sense used in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332. 36 The applicant relied on the duty to inquire as recognised in Ashraf v Minister for Immigration and Border Protection [2018] FCAFC 50 at [56] (Tracey, Mortimer and Moshinsky JJ) and by Griffiths J in BBP15 v Minister for Immigration and Border Protection [2018] FCA 501. 37 The applicant submitted that he had never been represented by a lawyer or migration agent, which was an important reason for finding that no duty to inquire arose in BBP15. 38 As the failure to call Mr Long as invited (or make a further request of the applicant) did give rise to jurisdictional error, these failures (together or separately), the applicant submitted, rendered the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (as considered in Minister for Immigration and Citizenship v Li). 39 The applicant submitted that to deport the father of an Australian family, having been told that the 12 year old son had behavioural problems and a developing history of violent conduct without calling the FACS officer (or the father), when invited, to get the full picture, which would have revealed how essential the father's continued presence in his country as a carer was, for both Corey and Jessica, bespoke a manifestly unreasonable decision. No reasonable decision-maker with the responsibilities the Minister had under the Act (including as informed by Direction 65) to the Australian community and minors in it, could have failed to ascertain the relevant facts that revealed that Corey's only family home option (apart from State care or incarceration) was with his father. The Minister did not know this because he did not bother to ask for readily available and centrally relevant material about Corey from Mr Long (or the applicant). The Minister never asked the question: "But he can go back to living with his mother, correct?" or, of Jessica: "The concerns about her intellectual disability have a medical basis, correct?". Yet these inquiries were obvious ones to be made, by any remotely diligent decision-maker sitting in judgment on the future of the applicant and his family, as the Minister was. They were invited by Mr Long, the answers would have been readily given and so, for the Minister to have proceeded from 31 July 2017 (the date of Mr Long's letter) without making any attempt to make these inquiries led to a legally unreasonable decision: BBP15 at [48], citing Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 (Wilcox J). 40 The Minister submitted that grounds 1-6 criticised, in various ways, the Minister's failure to consider Corey's changed circumstances. The applicant did not appear to submit that material before the Minister raised this issue. There was nothing in the Court Book that suggested that the Minister had information before him relating to this new issue. The latest representation made by the applicant to the Minister, dated 2 November 2017, referred to the son's circumstances as being unchanged from those described in the letter from FACS. 41 That letter, the Minister submitted, suggested that the youngest son was incarcerated in a juvenile justice centre. The letter emphasised the importance of the father's presence for the stabilisation of the son's life. That passage was expressly referred to by the Minister, at [19]. Likewise, the representations by the mother of the child emphasised the importance of the father's presence, and the son's desire to live with his father, but did not allude to any more significant difficulty as to living arrangements. 42 However, there was no material before the Minister that asserted: (a) that the son could not live with his mother due to an AVO / past verbal and physical abuse of his mother which led to his incarceration; (b) that the son would accordingly be required to be placed in State care or incarceration in the absence of being cared for by his father; or (c) it was in the interest of the applicant's former partner and her minor children that the son live with the applicant given the son's history of criminal violence and violence to his mother and minor siblings. 43 Accordingly, the Minister submitted, grounds 1-3 must fail. He was not required to consider matters or arguments that did not arise on the material before him. At most, the structure of s 501CA suggested that the Minister must consider the applicant's representations "as a whole": see Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [56]; approved in Minister for Home Affairs v Buadromo [2018] FCAFC 151 at [41]. The Minister discharged that obligation. 44 In relation to the substance of the amendments adding grounds 3A-3D, the Minister submitted that there was material before him saying that the applicant father will have to reside at the house of his adult daughter. Also because the Minister had no reason to contemplate that Corey lived anywhere other than with the mother, one issue that was not then addressed was whether the applicant's offer to have Corey live with him was one capable of being accepted, if the applicant was going to live with his adult daughter. The sort of factual narrative that the applicant put to the Court that Corey would go and live with him did not line up with the applicant's letter of 2 November 2017. And then in the last representation made to the Minister, on 2 November 2017, the applicant said that he had parole until 3 May 2019 and that his daughter had offered for him to live there for that period or until he found accommodation and that he wanted to do that. At CB 202, the applicant said that he wanted to care for Corey who had been having difficulty, and he then referred back to Mr Long's letter, but that did not suggest that there was any important change: it was no more than a reference to Mr Long's letter. 45 Going to that letter, the Minister submitted it went too far to say that the only inference available from this letter was that Corey would not be able to live with his mother. It contained concerns that Corey might hurt someone at his home, but from that starting place there was not an inexorable possibility that he would not be able to live there, particularly given his young age. None of the later representations raised any issue other than the psychological issues that the Minister considered in [19], and in that context there was not some single inference that could be drawn from Mr Long's letter. Taking the material as a whole, the representation that was made was that the son has psychological and behavioural issues that would be exacerbated if the cancellation of the visa was not revoked, and that was precisely the representation that the Minister considered. 46 The Minister submitted that even if one adopted the approach of whether an issue "squarely arises", the issue of the living arrangements for Corey did not squarely arise from Mr Long's letter, either on its own or within the context of the later representations. 47 The Minister submitted that grounds 4-6 must also fail, because it could not be illogical or irrational for the Minister to fail to regard matters of which he was unaware, and which did not arise on the material before him. Moreover, any argument of irrationality must overcome the broad area of decisional freedom afforded to the Minister exercising personal powers under s 501CA(4): see Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 at [55] - [65]. In the present case, it was within power for the Minister to form the judgment that he did at [68] as to the relative weight to be given to the protection of the community versus the interests of the children as a primary consideration. In making that decision, the reasoning at [18] - [20] made clear that the Minister understood the serious impact on the children as it arose from the material before him. 48 Ground 8 alleged that the Minister breached a duty to inquire as to Corey's circumstances. The Minister had no express obligation under s 501CA to inquire. In the different context of a tribunal's obligation to conduct a "review", the majority in SZIAI observed at [25] that "it may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review." The Minister submitted that to the extent, if any, that this reasoning could apply to a personal decision of the Minister, there was nothing to suggest to the Minister that the circumstances of the youngest son had changed such as would warrant an inquiry. The applicant had submitted, over a period, a number of documents that related to the son's circumstances. There was nothing to suggest to the Minister that any further inquiry was needed. On the material before the Minister, there was nothing that would put the Minister on notice or that would suggest that the living arrangements were a critical fact in such a way that no reasonable decision-maker could fail to pick up the telephone and ask whether the living arrangements were still the same. 49 Turning to the daughter's condition, grounds 7 and 9, the Minister submitted that as observed by him at [18], Mr Long's letter referred to the daughter as having an intellectual disability. No details were given, and the disability was not referred to by either the applicant or the mother of the child. In those circumstances, it was open to the Minister to decide, as he did, that the disability was not such as to affect the weight to be given to the best interests of the daughter. No error was shown, nor was there any obligation on the Minister to inquire about the extent of the daughter's disabilities.

Consideration 50 I consider first the matters raised by the amended grounds 3A-3D since, apart from those grounds, the substance of the applicant's case depended on whether or not the Minister was obliged to go further than the matters put in the representations made to him by the applicant or in support of the applicant's application. 51 In my opinion, it could not be said that the only available inference from Mr Long's letter was that Corey could not continue to safely live with his mother without unacceptable danger to her and her other children. The substance of what was put by counsel for the applicant was that the Minister made a jurisdictional error in failing to draw that inference, it being, as a matter of fact-finding, the only inference. In my opinion the Minister was entitled to find, and this finding was not directly challenged, that Corey lived with his mother. Any inference that could be drawn from the letter needs to be considered in that context and also in the context that the material before the Minister otherwise showed that there were no court orders relating to Corey. For the purposes of judicial review, whether the inference was available to be drawn is not to the point as this claimed jurisdictional error could only be made out if the fact that Corey could not live with his mother was the only available inference. In my opinion this ground is substantially affected by hindsight, being the later material, the subject of the applicant's affidavit, that became available to the applicant but which the applicant did not put before the Minister. Ground 3A therefore fails. 52 In my opinion, ground 3B fails for the same reason. However as a matter of fact it is not necessarily the corollary of ground 3A, that is, if the only inference was that Corey could not live with his mother then in the circumstances of his father's deportation Corey would be required to go into State care or incarceration. Certainly Mr Long's letter indicated the applicant father's assent to Corey living with him but the material does not deal with whether or not another relation would be willing to have Corey live with them. 53 Grounds 3C and 3D are consequential and cannot succeed in light of the failure of grounds 3A and 3B. 54 As I have said, the substance of the applicant's case depended on whether or not the Minister was obliged to go further than the matters put in the representations made to him by the applicant or in support of the applicant's application. Unless that contention can be made good, the majority of the applicant's submissions, including their invocation of the merits, fall away. 55 In SZIAI, the High Court said, (at [25]): Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case… (Footnote omitted.) 56 In my opinion, in the present case neither the terms of the statute nor what was done in the course of decision-making nor the representations which were made establish that the Minister was obliged to make any further inquiry. 57 The terms of the letter from Mr Long do not take the matter further. The closing sentence of that letter is a template provision of contact details in case the addressee wishes to contact the author or another relevant officer. The sentence does not bear the substantial weight the applicant seeks to put on it. No doubt either of those officers was available to provide information but nowhere in the representations made by the applicant did the applicant suggest or ask that the Minister or the Department contact FACS. 58 It is for the applicant to make the representations to the Minister which he wishes to make. As pointed out in the written submissions, and as I have summarised at [6] above, the applicant had submitted, over a period, a number of documents that related to Corey's circumstances. There was nothing to suggest to the Minister that the circumstances of Corey had changed such as would warrant an inquiry. There was no submission put to the Minister showing that any further inquiry was needed or required. In my opinion, there was nothing giving rise to a legal duty to inquire as a matter going to the jurisdiction of the Minister. 59 In relation to the line of authority and the considerations in SZIAI, I note that this is not a tribunal case such that the process is not inquisitorial; the facts were well known to the applicant and were relevantly within his power to adduce; there was no basis for the Minister to think that the position as contained in the representations had changed. I accept for present purposes that the material that could have been discovered if there was a duty to discover it was important in the relevant sense. In short in my opinion without the benefit of hindsight there was not a factual basis for concluding that the Minister's failure to inquire constituted a failure to undertake his statutory duty or is otherwise so unreasonable as to vitiate his decision: see SZIAI at [26]. 60 In my opinion, so far as the applicant's submissions depend on a failure on the part of the Minister to inquire into the condition or circumstances of either Corey or Jessica, those submissions fail. As I have said, on the material before the Minister, the Minister found, at [14], that those children resided with their mother. 61 As to mandatory relevant considerations, there is a tension between Minister for Home Affairs v Buadromo [2018] FCAFC 151 relied on by counsel for the Minister, and Hay v Minister for Home Affairs [2018] FCAFC 149, Hooton v Minister for Home Affairs [2018] FCAFC 142 and Viane v Minister for Immigration and Border Protection [2018] FCAFC 116. Buadromo does not consider Viane. For this reason and because the approach in Viane is more favourable to the applicant I will, for present purposes, apply Viane. But this leaves the major question of what was put by the applicant or on his behalf in the representations. In my opinion a Viane analysis does not assist the applicant as there was no failure on the part of the Minister to consider "each of the matters that are raised in the representations in a manner which identified them as significant": see Viane at [72]. 62 Insofar as this claim may bear a different legal characterisation, as pleaded in ground 3C, as material matters critical and relevant to the applicant's case, rather than one or more mandatory relevant considerations, it depends, at least, on either of the two inferences pleaded as grounds 3A and 3B and fails in light of my rejection of those grounds. In Viane it was held that the representations the Minister failed to consider concerned the hardship the appellant's partner would suffer if she had to relocate to Samoa and that those representations were substantial and significant such that the Minister's failure to consider them should be characterised as jurisdictional error: see the judgment at [2] per Reeves J, at [31] per Rangiah J and at [75] per Colvin J. In the present case, the representations that Corey could not live with his mother and could live only with his father as an alternative to State care or incarceration were not put expressly or as a matter of necessary inference. 63 As I have said, I do not accept the applicant's submission that the material before the Minister required an inference to be drawn that Corey could not safely live with his mother and minor siblings and that this, therefore, was a failure to consider a relevant matter. The applicant's reliance, with reference to the concept of the decision-maker being required to engage in an active intellectual process directed at that claim, with reference to Carrascalao at [45], therefore fails. 64 As to the claims of legal error on the part of the Minister in considering the best interests of Jessica, again it substantially rests on an alleged failure to inquire and for the same reasons I have given in relation to the position of Corey, I reject the submission that the Minister failed to make an inquiry he was required to make. 65 I therefore do not accept the submission that the Minister reasoned irrationally and illogically in relation to the impact on and best interest of Jessica. I do not read what the Minister said at [18] of his reasons as requiring corroboration but as observing that neither Jessica's mother or father had mentioned the issue of her intellectual disability and in light of the lack of that further information the Minister had not given the matter extra weight in assessing Jessica's best interests. It follows I also reject the submission that the Minister's decision was legally unreasonable in this respect. 66 I have proceeded so far largely by reference to the submissions. Turning to the grounds of the amended originating application, grounds 1-3 depend, at least, on the applicant making good the ground that the Minister erred in law in failing to make further inquiries. Grounds 4-7 are in the same category. Grounds 8 and 9 are also in the same category. Since I have rejected the applicant's submission that the Minister did err in law in failing to make further inquiries each of the grounds fails. I have expressly dealt with Grounds 3A-3D at [50]-[53] above. 67 To the extent that the applicant submitted that, even in the absence of any duty to inquire arising from the material before the Minister or there being more than one available inference from Mr Long's letter, the Minister's decision was vitiated by jurisdictional error arising from a failure to exercise or complete his statutory task on the basis of the material that was before him (whether framed by reference to legal unreasonableness, illogical and irrational reasoning or otherwise) I reject that submission. The Minister considered each representation made by the applicant and made findings accordingly. No jurisdictional error has been made out. The Minister found, at [19], that it was particularly important for Corey to be reunited with his father if Corey's current psychological and behavioural issues were to be resolved.

Conclusion and orders 68 This is not a case that succeeds on judicial review. What appears to have happened is that, apparently through lack of advice, the applicant did not make representations to the Minister about important issues concerning the future care of Corey, and, to a lesser extent, Jessica, which post-dated the representations the applicant did make but preceded the date of the Department's brief to the Minister and the Minister's decision. It is a case in which, where possible, the Minister's decision should be reconsidered so that what now appears, from the information not provided by the applicant to the Minister, may be the unhappy future of at least one Australian child is taken into account. 69 I would dismiss the application, with costs. 70 The orders I make are as follows: the applicant's application for judicial review is dismissed. The applicant is to pay the Minister's costs as agreed or assessed. I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.