Weti-Safwan v Minister for Home Affairs

Federal Court of Australia (Full Court)|2019-10-16|Before: Stewart JJ

The appeal be allowed.
Order 1 made by the primary judge on 16 November 2018 be set aside and, in lieu of that order, the Minister's decision made on 4 April 2017 be set aside.
The respondent pay the appellant's costs of the appeal to be fixed in a lump sum by a Registrar of the Court in the absence of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 This is an appeal from an order made by a judge of this Court on 16 November 2018. The appellant brought an application for judicial review seeking an order quashing a decision of the Minister for Home Affairs to cancel the appellant's Class WR Subclass 070 Bridging (Removal Pending) visa under s 501BA(2) of the Migration Act 1958 (Cth) (the Act). The primary judge made an order dismissing the appellant's application (Weti-Safwan v Minister for Immigration and Border Protection [2018] FCA 1761).

The Minister's Reasons 12 It is not necessary to summarise in detail all aspects of the Minister's reasons. As we will explain, it is necessary to consider only two of the four grounds of appeal and they are Grounds 3 and 4. 13 We will provide a detailed summary of the reasons insofar as they are relevant to Grounds 3 and 4 and a more general summary in relation to other aspects of the reasons. 14 The Minister exercised the power in s 501BA(2) of the Act. By reason of that fact, the appellant was not given an opportunity to make representations regarding the possible cancellation of her visa. As to this aspect of the matter, the Minister said the following: 5. Under s501BA(3) of the Act, the rules of natural justice do not apply to a decision under s501BA(2). This means Ms WETI-SAFWAN has not been advised that consideration was being given to her visa being cancelled and therefore she has not been given any opportunity to make representations regarding the possible cancellation of her visa, including the impact an adverse decision would have on her and third parties. 6. I am also cognisant that as a consequence of my decision to proceed under s501BA(2) without natural justice to Ms WETI-SAFWAN, there is no revocation power to ameliorate the lack of natural justice in the decision and therefore Ms WETI-SAFWAN will not at any stage be given an opportunity to make representations in relation to my decision. 7. I have had regard to the fact that Ms WETI-SAFWAN would not have access to merits review in relation to my decision. 8. I have carefully weighed this matter against proceeding under s501BA(2). However in this case, I have decided to proceed, even noting that the exercise of my s501BA(2) power will have real and practical consequences to Ms WETI-SAFWAN and her family, they being third parties. In this instance Ms WETI-SAFWAN's family includes: her minor daughter aged four, her spouse, mother, father, step-mother, step-father, mother-in-law and four siblings and other members of her extended family. 9. I also note that Ms WETI-SAFWAN, with representation, was able to present her case at the AAT in a thorough manner, and on 12 October 2016 the AAT made its decision. Since that time four months have elapsed and information before me may not reflect all of her current personal circumstances. These paragraphs in the Minister's reasons will be important when we come to consider Ground 4. 15 The Minister noted that his power to cancel a person's visa under s 501BA(2) is subject to two conditions. First, he must be satisfied that the person did not pass the character test. Secondly, he must be satisfied that the cancellation is in the national interest. 16 The Minister was satisfied that the appellant did not pass the character test because of the operation of s 501(6)(a) of the Act on the basis of s 501(7)(c) of the Act. 17 The Minister then turned to consider the national interest. He found that matters of national interest could include, among other things, the seriousness of the appellant's criminal conduct, having regard to the circumstances and nature of the conduct and dispositions imposed by the Court. He referred to the appellant's criminal history which he described as extensive. He then described that criminal history in detail. The Minister referred to the conclusions of the Tribunal with respect to the appellant's criminal history. He also referred to the way in which the courts had dealt with her criminal history. He said that he had regard to the fact that the appellant had been convicted of multiple offences resulting in the imposition of terms of imprisonment on several occasions. He said that, having regard to the circumstances of the appellant's criminal conduct, as well as the many dispositions of imprisonment of up to 15 months imposed by the courts, he found that the appellant's conduct was of such seriousness that he was satisfied that it was in the national interest to cancel her visa. 18 The Minister recognised that the power to cancel a visa under s 501BA is discretionary and he went on to consider whether there were relevant considerations that might support a decision not to cancel the appellant's visa notwithstanding his satisfaction that the appellant did not pass the character test and that the cancellation of her visa was in the national interest. 19 The first matter the Minister considered was the protection of the Australian community and, in that context, he considered whether she posed a risk to the Australian community through reoffending. He also considered whether there were any mitigating or causal factors in her offending and he assessed the steps the appellant had undertaken to reform and address her behaviour. The Minister found that there was a nexus between illicit drug use by the appellant and her criminal conduct. He said that as he accepted that the appellant's offending in the main related to her drug use, he considered the rehabilitation she had undertaken, specifically in relation to substance abuse. He identified the steps which the appellant had taken to overcome her drug use and her stated intention to work and contribute to the Australian community. He noted her history of reoffending. He referred to her contention that she now had the "tools" to address her substance abuse and drug addiction. He considered the extent to which the appellant had insight into her offending and her previous efforts to reform her behaviour. He considered her breach of previous court orders and the warnings given to her that reoffending may affect her migration status. 20 The Minister said that he acknowledged that in the four months since her release from immigration detention on 12 October 2016, the appellant had refrained from further offending. He said that whilst he found this commendable, he was cognisant that it reflects a relatively short period of testing when viewed against her history. It seems to us that it is reasonable to infer that the Minister's reference to the fact that the appellant had succeeded in refraining from further offending since her release from immigration detention on 12 October 2016 was based on a statement in the submission to the Minister to the effect that advice received by the Department showed that the appellant had not reoffended since her release into the community on 12 October 2016. It is also reasonable to infer that the period of four months is the period between 12 October 2016 and a date in February 2017. As we have said, the submission to the Minister was stamped as received on 17 February 2017. At the time of the Minister's decision, a period of just under six months had, in fact, elapsed since the appellant's release from immigration detention on 12 October 2016. 21 The Minister said that, notwithstanding the appellant's current progress to rehabilitation, he was concerned that she previously resumed drug taking with subsequent offending after her stated rehabilitation. He found that there is an ongoing risk that the appellant will reoffend, and that, although her individual offending may be considered relatively minor, the cumulative effect on the community of her offending is serious. This finding at [49] of the Minister's reasons will be important when we come to consider Ground 3. 22 The Minister considered the best interests of minor children. In that respect, he focused on the appellant's daughter, Miriam Safwan, who was born on 7 May 2012, and at the time of the Minister's decision was four years of age. In connection with the best interests of minor children, the Minister referred to a character reference given by the appellant's stepfather, the conclusions of the Tribunal, and a psychological assessment which had been noted by the Tribunal. The Minister reached the conclusion that the non-cancellation of the appellant's visa is in the best interests of her daughter. 23 The Minister considered the expectations of the Australian community. He considered the findings of the Tribunal and formed a view as to the expectations of the Australian community in terms of compliance with Australian laws by non-citizens. The Minister concluded that, given the serious nature and impact of her offending when considered cumulatively, the Australian community would expect that the appellant should not hold a visa. 24 The Minister considered the strength, nature and duration of the appellant's ties to Australia. He noted that the appellant was born in New Zealand and arrived in Australia aged three years on 19 June 1985. He noted that she was first convicted of an offence on 25 February 1997 when she was 15 years of age. He noted that the appellant had resided in Australia for almost 32 years, including her formative years. The Minister referred to the appellant's relationship with her husband and the hardship which would be caused by her separation from her husband. He also referred to various conclusions reached by the Tribunal. 25 The Minister considered the extent of impediments to the appellant if she is removed from Australia. In that context, he considered whether the appellant was likely to experience language or cultural difficulties in New Zealand, the extent to which the appellant would have support structures in New Zealand, the effect of the separation of the appellant from her daughter, spouse and other family members, and the effect the separation may have on the appellant's mental health. 26 The Minister concluded that the Australian community could be exposed to further harm should the appellant reoffend in a similar fashion. He said that he could not rule out the possibility of further offending by the appellant notwithstanding factors including her efforts at rehabilitation, her stated remorse, her intended rehabilitation from the use of illicit drugs, and the strong support of her family. He considered that the Australian community should not tolerate any further risk of harm. The Minister considered that these considerations outweighed the countervailing considerations in the appellant's case, including the primary consideration in relation to the best interests of the appellant's daughter, the length of time the appellant has resided in Australia, the appellant's strong familial and social ties to Australia, the hardship to the appellant's family members and others in Australia, and the impediments the appellant is likely to face in returning to New Zealand. 27 The Minister said that the considerations favouring non-cancellation were outweighed by the national interest considerations to which he had referred and that he had decided to exercise his discretion to set aside the decision of the Tribunal and to cancel the appellant's visa under s 501B of the Act.

The Grounds of the Appeal 28 The appellant's Further Amended Notice of Appeal contains four grounds of appeal. The appellant filed an outline of submissions and that outline addresses all four grounds of appeal. The respondent also filed written submissions and, in those submissions, the respondent contends that Grounds 1 and 2 as particularised and expressed in the Further Amended Notice of Appeal were not raised before the primary judge. When the appellant's appeal came on for hearing before this Court, the appellant's counsel indicated that she would not be making oral submissions in support of Grounds 1 and 2. She said that she did not have instructions to abandon those grounds and that the appellant relied on the outline of submissions in relation to those grounds. The Court raised with the appellant's counsel the respondent's contention that those grounds had not been raised before the primary judge. The appellant's counsel did not seek to put a contrary submission or seek leave to raise new grounds on the appeal. It appears to us from an examination of the primary judge's reasons that the matters raised in Grounds 1 and 2 were not raised before the primary judge. Leave to raise those grounds would, therefore, be required. In the absence of an application for leave to raise those grounds, they must be dismissed. 29 The thrust of the appellant's submissions in relation to the appeal were directed to Ground 4 which raises a matter which had not been raised before the primary judge. The matter raised in Ground 4 is similar to the matter raised in two decisions of this Court in Ibrahim v Minister for Home Affairs [2019] FCAFC 89 (Ibrahim) and Nguyen v Minister for Home Affairs [2019] FCAFC 128 (Nguyen). The decision in Nguyen was handed down on 9 August 2019. This appeal was originally listed for hearing on 12 August 2019. The respondent did not object to the matter in Ground 4 being raised on the appeal. 30 The appellant made brief oral submissions in support of Ground 3 and we will consider that ground after we have considered Ground 4.

Ground 4 31 Ground 4 is the following terms: 4. The Court erred in failing to find that the Minister misunderstood the operation of s.501BA(2) of the Migration Act 1958 (Cth) as he misunderstood s.501BA(3) of the Migration Act by believing it precluded him from giving effect to the rules of natural justice by inviting the appellant to make submissions or provide further material: Nguyen v Minister for Home Affairs [2019] FCAFC 128. Particulars a. The express terms of the Minister's statement of reason (SoR) at [5] infer that he mistakenly considered that the decision he had to make was to proceed under s.501BA(2) of the Migration Act without providing natural justice. b. As the Minister recognised that as a number of months had elapsed since the Appellant's last submissions (SoR [9]), it suggested a view that it would be fair to give her an opportunity to make further submissions, but the Minister understood that he was barred from doing so. c. The Minister's finding of "the possibility of further offending" (SoR [89]) was partly predicated on the reason that the Appellant had "previously resumed drug taking with subsequent reoffending after her stated rehabilitation" (SoR [48]) but that could have been ameliorated had he understood that it was open to him to invite submissions and further material from the Appellant in relation to her achievement of a drug free status. 32 We note with respect to [9] of the Minister's reasons that a period of just under six months had elapsed between the decision by the Tribunal on 12 October 2016 and the Minister's decision on 4 April 2017 and that during that time the appellant had been in the community.

Ibrahim 33 In Ibrahim, a similar argument to that as now advanced by the appellant was raised. The relevant passages in the Assistant Minister's reasons in that case were as follows: [10] Under s501BA(3) of the Act, the rules of natural justice do not apply to a decision under s501BA(2). This means Mr IBRAHIM has not been advised that consideration was being given to his visa being cancelled and therefore he has not been given any opportunity to make representations regarding the possible cancellation of his visa, including the impact an adverse decision would have on him and third parties. [11] I am also cognisant that as a consequence of my decision to proceed under s501BA(2) without natural justice to Mr IBRAHIM, there is no revocation power to ameliorate the lack of natural justice in the decision and therefore Mr IBRAHIM will not at any stage be given an opportunity to make representations in relation to my decision. [12] I have also had regard to the fact that Mr IBRAHIM will not have access to merits review in relation to my decision. [13] I have carefully weighed these matters against proceeding under s 501BA(2). However in this case, I have decided to proceed, even noting that the exercise of my s501BA(2) power will have real and practical consequences to Mr IBRAHIM and his family, they being third parties. In this instance Mr IBRAHIM's family includes his three minor Australian citizen children and his girlfriend, Ms Raelene Rowland. [14] I also note that Mr IBRAHIM made representations in support of the revocation of the cancellation decision and received that assistance of the South Australian Legal Services Commission. Since that time, some two and a half years have elapsed. I note that Mr IBRAHIM's visa was cancelled by the Assistant Minister in May 2017, he has spent some three months in immigration detention between July and October 2017. Mr IBRAHIM was released into the community following the judgment of the Federal Court of Australia on 13 October 2017. I considered that Mr IBRAHIM's circumstances are likely to have changed in the intervening timeframe, although the Department holds limited information regarding his personal circumstances. 34 There are, of course, differences between the circumstances in Ibrahim and those in this case as reflected in [14] of the Assistant Minister's reasons in Ibrahim and [9] of the Minister's reasons in this case. The periods are different in that in Ibrahim the representations were two and-a-half years old, whereas in this case, the representations are just under six months old. There is also the difference that in Ibrahim the Assistant Minister expressly said that Mr Ibrahim's circumstances were likely to have changed in the intervening time frame, although the Department held limited information regarding his personal circumstances, whereas in this case, the Minister said that the information before him may not reflect all of the appellant's current circumstances. Despite these differences, the appellant invited this Court to draw similar conclusions to those drawn by the Full Court in Ibrahim. The Full Court in Ibrahim said (at [47]) that the Minister's statement that circumstances were likely to have changed since Mr Ibrahim's original submission seemed to involve an implicit recognition by the Assistant Minister that the appellant's case was very different from the more typical case under s 501BA(2) in which consideration of the setting aside of a revocation of a cancellation occurs relatively soon after the revocation decision (in respect of which the affected person will have had the opportunity to make submissions) and it suggested an understanding by the Assistant Minister that it would be fair to give the appellant an opportunity to make further submissions, but that s 501BA(2) did not permit him to do so. 35 We note that in Ibrahim, the appellant tendered an affidavit of his spouse. The Assistant Minister appeared to have been unaware of the marriage. In her affidavit, Ms Ibrahim set out the matters which she and the appellant would have advanced to the Assistant Minister had they been given the opportunity to do so. Those matters included the couple's plans to have children and an explanation of some of the appellant's criminal conduct. The Full Court concluded that "[p]lainly, the matters to which Ms Ibrahim deposed were pertinent to the Assistant Minister's decision" (at [15]). 36 The Full Court in Ibrahim concluded that the Minister had committed a jurisdictional error and said, referring to Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 (Hossain) at [31], [46], [66]-[72], that the contents of the affidavit of Mr Ibrahim's spouse indicated the materiality of the Assistant Minister's misapprehension (at [63]). No affidavit has been put before the Court in this matter.

Nguyen 37 In Nguyen, the Full Court noted that the paragraphs in the Minister's reasons in that case were, subject to one matter, substantially the same as the Assistant Minister's reasons in Ibrahim. The one point of difference in Nguyen was that in that case the Minister found that the appellant's circumstances "may have since changed" some five months having elapsed where no further information was available to the Minister. 38 The Full Court said that, subject to the question of materiality, the Court saw no difference of substance between the legal principles and the facts in Ibrahim and the legal principles and the facts in the appeal before the Court. The Court noted that the Minister did not argue for any different construction, but submitted that Ibrahim was distinguishable. 39 The Full Court considered the issue of materiality. The Court considered that the Minister's acknowledgement that the appellant's circumstances may have changed suggested, as it did in Ibrahim, an understanding by the Minister that it would be fair to give the appellant an opportunity to make further submissions, but that s 501BA(2) did not permit him to do so. The Full Court said that it did not regard it as incumbent on the appellant to prove what he would have done if the Minister had considered whether or not to request from him, or give him the opportunity to provide, the further information as to his circumstances over the preceding five months or further submissions. The Court said that the error operated at an earlier point than a failure to afford procedural fairness. As the Full Court had said in Ibrahim, the Minister misunderstood the nature of the power he was exercising and he should have understood that it was open to him to invite submissions from the appellant if he chose. 40 The Full Court noted that there was no similar evidence before the Court to that before the Court in Ibrahim, that is to say, the evidence from Ms Ibrahim. However, the Court said that the case before it was not a common denial of procedural fairness case, but a case of the Minister misunderstanding the nature of the power he was exercising. The Full Court considered that it was not apposite to refer to the affidavit evidence and the discussion of materiality in Hossain and said that the Full Court in Ibrahim had gone further than was necessary. The Court went on to explain this conclusion by reference to what it considered to be the preferable analysis (at [49]-[55]).

Analysis 41 It is not necessary for us to enter into that debate because this case was not argued by reference to different expressions of legal principle, but rather on the basis that this case was factually distinguishable from Ibrahim and Nguyen in the sense that the inferences drawn in those cases should not be drawn in this case. Whilst the respondent concedes that having regard to the similarity of the language used by the Minister in this case with that in Ibrahim and Nguyen, the Court will accept that "he misunderstood the power in section 501BA(2) of the Migration Act 1958 (the Act) as prohibiting the provision of natural justice to the appellant", he submits that Ibrahim and Nguyen are factually distinguishable in that the Assistant Minister and Minister's reasons in those cases indicated that the circumstances of both appellants were likely to have changed since their last submission. The respondent pointed to the fact that in Nguyen, the Minister had also noted later in his reasons that his information as to the appellant's rehabilitative efforts may now be dated. We do not consider this circumstance to be a material distinction. The full context of what the Court said in Nguyen must be considered. The Court said the following (at [45]): Turning then to the issue of materiality, in our opinion the relevant analysis is as follows. The Minister erred in assuming, having decided to use s 501BA(2), that he could not provide natural justice to the appellant. As we have said, the Minister's recognition, at [10] of his reasons, that "some five months have elapsed where no further information is available from him" and the Minister's acknowledgement that the appellant's circumstances may have since changed, suggests, as in Ibrahim, an understanding by the Minister that it would be fair to give the appellant an opportunity to make further submissions but that s 501BA(2) did not permit him to do so. The Minister also noted, at [31], that his information as to the appellant's rehabilitative efforts may now be dated. It follows that the Minister's misunderstanding meant that he did not consider giving the appellant the opportunity to supply that further information or make submissions as to why the power to set aside the original decision and cancel the appellant's visa should not be exercised. 42 We do not consider that the Full Court's reference in Nguyen to what the Minister had noted at [31] of his reasons was the deciding factor in terms of the Court's conclusion. 43 The other point made by the Minister in this case was that in the first sentence in [9], he said that the appellant with representation was able to present her case at the Tribunal in a thorough manner. That is true, but we do not consider that that is a material point of distinction from Ibrahim and Nguyen. We note that in Ibrahim, the Assistant Minister at [14] recorded that Mr Ibrahim had made representations in support of the revocation of the cancellation decision and had received assistance "of the South Australian Legal Services Commission". Although we agree with the respondent that much will depend on the facts of each case in terms of the inferences to be drawn, we do not consider that the circumstances in Ibrahim and Nguyen and, in particular, Nguyen are different from this case to the point that the same inferences should not be drawn in this case as were drawn in those cases. In fact, this case is very similar to Nguyen. The Minister's argument must be rejected. 44 We uphold Ground 4 of the Further Amended Notice of Appeal and, in the circumstances, the Minister's decision made on 4 April 2017 must be set aside.

Ground 3 45 Ground 3 is in the following terms: 3. The Court erred at [39] of the judgment in finding that the Minister meaningfully engaged with the body of evidence and made inferences and findings logically connected to that evidence in relation to Ms Weti-Safwan's likelihood of reoffending and the level of risk she posed to the national interest. 46 As we understand this ground, it is that the Minister's conclusions with respect to the appellant's likelihood of reoffending and the risk she posed to the national interest, were of central importance to the Minister's reasoning and there was no material to support them. To support her argument that such an approach amounts to jurisdictional error, the appellant relied on Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 364 ALR 423 at [46] per Allsop CJ (Markovic and Steward JJ agreeing) and Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [100] per Mortimer J. 47 The appellant relied on the following matters to contend that the Minister's conclusions concerning the appellant's likelihood of reoffending, the level of risk she posed to the national interest and the level of tolerable risk to the community were made without probative material: a. that the appellant's offending related to her drug use; b. that the appellant had attended and continued to participate in drug rehabilitation programs; c. that the risk of recidivism by the appellant was minimized and prognosis favourable with ongoing treatment and management of dynamic factors; d. of the strength of her ties to her sizeable family in Australia and her family members' statements of support which noted the hardships she had faced and the efforts she was making to address her problems; e. that her wish to be a good mother to her daughter had given her strength to conquer her drug addiction and learn how to manage challenges; f. she had good employment prospects in Australia; g. that she did not have any family in New Zealand; and h. that during her period in the community following release from immigration detention following the decision by the AAT the appellant "succeeded in refraining from further offending". 48 Perhaps to emphasise her point, the appellant referred to herself in her outline of submissions as a former shoplifter. 49 With respect to the appellant's likelihood of reoffending, the Minister found that there is an ongoing risk that she will reoffend and he found that, although her individual reoffending may be considered relatively minor, the cumulative effect on the community of her many offences is serious (at [49]). 50 With respect to the level of risk the appellant posed to the national interest, the Minister referred to the consequences to the Australian community if the appellant was to reoffend in a similar manner (at [49]). He also referred to the serious nature and impact of the appellant's offending when considered cumulatively and that the Australian community would expect that the appellant should not hold a visa (at [66]) in his conclusions, that the Australian community should not tolerate any further risk of harm (at [89]). 51 The primary judge dealt with these arguments and related arguments in the following paragraphs in her reasons: 39. Nor is there any reason to infer that the weight the Minister gave to the applicant's criminal history was so disproportionate as to be unreasonable. As explained above, it is largely up to the Minister to determine what considerations are relevant to the individual case. In some circumstances "the seriousness of a person's criminal history will be sufficient to satisfy the Minister that the refusal of a visa is in the national interest": Madafferri at [86]. As noted, the Minister did not refer to matters such as the best interests of the applicant's child and family in the national interest section of his reasons. However, it cannot be inferred from this fact alone that the Minister considered those matters irrelevant or gave them manifestly disproportionate weight. The most appropriate inference is that he considered the applicant's criminal history and likelihood of continuing to offend serious enough that cancellation was in the national interest irrespective of the weight of countervailing matters. The absence of express reference to these matters in that part of the Minister's reasons dealing with the national interest does not mean there was no logical connection between the evidence and his findings or that his reasons disclose no evident or intelligible justification for his findings. 40. The ultimate finding that cancellation of the applicant's visa was in the national interest was also open to the Minister based on the applicant's criminal history. The applicant referred to the existence of a psychological assessment report, referred to at [32] of the Tribunal's reasons for the original decision. The report said, in summary, that despite the applicant's criminal history meaning that she could never be assessed as at low-risk of re-offending, she was moving into a period of her life generally associated with increased desistance from crime, she had reduced her dependence on drugs, found stable housing, and had the motivation and support structures in place to limit her risk of reoffending. The applicant said the Minister overlooked this material in his national interest assessment. I am unable to agree. It cannot be inferred that the Minister overlooked this material simply because he did not refer to it in the national interest section of his reasons given that he referred to it as part of his discretionary consideration (at [56]). 41. In any event, this was an administrative decision-making process engaged in by a holder of political office. The Minister was not obliged to refer to all the relevant material available to him in his reasons or at all. The Minister was obliged to make his own inferences and arrive at a state of satisfaction or not whether cancellation was in the national interest in a non-arbitrary manner. The Minister did so in the present case by meaningfully engaging with the body of evidence, making inferences and findings logically connected to that evidence and providing evident and intelligible justifications for his conclusions. To require more would involve an impermissible exercise in reviewing the merits of the Minister's decision. 52 The Minister was entitled to reach the conclusions he did about the likelihood that the appellant would reoffend. As the primary judge held, the Minister did not misconstrue the meaning of "national interest". He was entitled to reach the conclusion he did concerning whether the Australian community should tolerate any further risk of harm. The Minister addressed each of the matters in paragraphs a. to h., save for the assertion that the appellant had good employment prospects which, in any event, was an assertion he was not bound to accept. In our opinion, this ground of appeal invites the Court to engage in a merits review and that is not the Court's function. 53 Ground 3 must be rejected.

Conclusions 54 The appeal must be allowed. The order made by the primary judge that the application be dismissed should be set aside and, in lieu of that order, an order made that the Minister's decision made on 4 April 2017 be set aside. 55 The appellant has succeeded on a ground not raised before the primary judge and, in those circumstances, the order for costs made by the primary judge should not be disturbed. The appellant should have her costs of the appeal. The appellant asked that her costs be awarded in a lump sum and we consider that to be appropriate. In the absence of an agreement, the lump sum amount is to be determined by a Registrar of the Court. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Besanko, Perry and Stewart.

Migration Act 1958(Cth)ss 501, 501BA, 501CA

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