BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCAFC 94
•28 May 2020
FEDERAL COURT OF AUSTRALIA
BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94
Appeal from: BHL19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 929 File number: NSD 1139 of 2019 Judges: WHITE, WIGNEY AND BROMWICH JJ Date of judgment: 28 May 2020 Catchwords: MIGRATION – appeal from orders of the Federal Court of Australia dismissing an application for judicial review of a decision of the Minister – where Minister exercised discretion under s 501(1) to refuse to grant protection visa – no error by primary judge established – appeal dismissed
Legislation: Migration Act 1958 (Cth) ss 5(1), 36(1B), 36(1C), 51A, 54, 55, 56, 57, 189, 197C, 198, 501(1), 501(6) 501(6)(d)(v), 501G(1)(e)
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Cases cited: AEM20 v Minister for Home Affairs [2020] FCA 623
ARG15 v Minister for Immigration and Border Protection 250 FCR 109; [2016] FCAFC 174
AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27
BAL19 v Minister for Home Affairs [2019] FCA 2189
BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54
BFW20 by his Litigation Representative BFW20A v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 562
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146
Doney v The Queen (1990) 171 CLR 207
EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681
Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423; [2018] FCAFC 225
Minister for Home Affairs v Buadromo 267 FCR 320; [2018] FCAFC 151
Minister for Home Affairs v Omar (2019) 373 ALR 569; [2019] FCAFC 188
Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28
Minister for Immigration and Border Protection v Haq (2019) 267 FCR 513; [2019] FCAFC 7
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11
Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210; [2016] FCA 516
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32
Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81; [2017] FCAFC 200
Plaintiff M46/2013 v Minister for Immigration and Border Protection (2014) 139 ALD 277; [2014] FCA 90
Sagar v O’Sullivan (2011) 193 FCR 311; [2011] FCA 182
Singh v Minister for Home Affairs [2020] FCAFC 7
SS v Australian Crime Commission (2009) 224 FCR 439; [2009] FCA 580
SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089
SZWCO v Minister for Immigration and Border Protection [2016] FCA 51
Date of hearing: 6 November 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 353 Counsel for the Appellant: Mr S Beckett with Mr M Robinson Counsel for the Respondent: Mr P Herzfeld with Mr D Reynolds Solicitor for the Respondent: Minter Ellison Lawyers
Table of Corrections 19 April 2021 In [206] replaced “21 January 2014” with “12 January 2014” and in [333] and [335] replaced “12 January 2015” with “12 January 2014”. ORDERS
NSD 1139 of 2019 BETWEEN: BHL19
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
JUDGES:
WHITE, WIGNEY AND BROMWICH JJ
DATE OF ORDER:
28 MAY 2020
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs as assessed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WHITE J:
The circumstances of this appeal and the provisions in the Migration Act 1958 (Cth) (the Act) which are relevant to it are set out in the reasons of Bromwich J. I agree that the appeal should be dismissed and with the orders proposed by his Honour. Subject to one matter, I agree generally with the reasons of Bromwich J and do not wish to add to them.
My qualification relates to the appellant’s submission that his letter of 8 July 2015 should be regarded as having been given to the Minister within the meaning of s 55(1) of the Act because the effect of his migration agents’ letter of 4 September 2017 had been to incorporate it by reference. I wish to state my own reasons for concluding that that submission should be rejected.
The appellant’s submission, advanced following a question from the Bench during the hearing of the appeal, was that his letter of 8 July 2015 had been “given to the Minister” under s 55 because it had been incorporated by reference in his migration agents’ response of 4 September 2017 to the Minister’s notice of intention to consider refusal ( the NOICR). The argument was that, the information in the letter having been given under s 55, it was material to which the Minister was, by s 54(1) and (2)(c), to have regard. The appellant’s alternative submission was that the information had been given (again by incorporation by reference) in response to an invitation by the Minister pursuant to s 56(2) and that information of that kind was also encompassed by s 55.
For the incorporation by reference, the appellant relied on the first paragraph in his migration agents’ response of 4 September 2017:
Our client, [BHL19], applied for a protection visa on 27 June 2016 and attended a protection visa interview on 8 July 2016. On 7 August 2017 [BHL19] received a ‘Notice of intention to consider refusal of his TPV application’ (‘Notice of intention to refuse’). We now provide the following submission and accompanying documents in support of [BHL19’s] visa application. We continue to rely on all evidence and submissions previously provided by or on behalf of our client.
(Emphasis added)
The appellant’s submission was based on the emphasised last sentence.
The appellant had not made a submission to this effect before the primary Judge. However, counsel for the Minister accepted, quite fairly, that there was no additional material which the Minister could have put before the primary Judge in answer to the submission and did not object to the submission being made for the first time on the appeal.
The appellant’s submission gives rise to two principal issues. The first is whether information is “given” under s 55 if an applicant, instead of providing the information to the Minister, simply refers the Minister to information which may otherwise be available to the Minister.
The second is whether, even if so, a statement expressed in the general terms used by the appellant’s migration agents were sufficient as an incorporation by reference of the letter of 8 July 2015.
As to the first of these matters, there are some textual and contextual matters in ss 54‑58 of the Act that the information relied on is to be given to the Minister and not just be the subject of a reference.
The first is that ss 54‑58 use the word “give” and not a term such as “referred to”. A natural meaning of the word “give” is to deliver, bestow or hand over – see the first meaning of the word in the Macquarie Dictionary. None of the other meanings of the term “give” in the Macquarie Dictionary give it, as a freestanding term, the meaning of “provide a reference to”.
The second is that it is natural to understand that, having imposed an obligation on the Minister to have regard to certain information, ss 54‑58 intend that there be some certainty as to the matters which are the subject of the obligation. Certainty of that kind is lacking if it is sufficient for an applicant simply to incorporate other documents by a generally expressed reference of the kind used by the appellant’s migration agents.
Related to that consideration is that the structure of ss 54‑58 suggests that the information to which the Minister is required to have regard be of a reasonably readily identifiable kind. That is self‑evidently so in the case of s 54(2)(a) and (b). Moreover, s 56(2) contemplates that the Minister may give an invitation to an applicant to give additional information “in a specified way” which, by s 58(1), may be in writing, at an interview or by telephone. That too seems to connote an actual provision of information in a manner which is readily identifiable.
However, it is unnecessary to express a concluded view about these matters. That is because, even if information may be given by the document provided referring to some other document, the sentence in the migration agents’ letter of 4 September 2017 on which the appellant now relies cannot reasonably be understood as incorporating reference to the appellant’s letter of 8 July 2015. A number of matters indicate that that is so:
(1)when the first paragraph of the migration agents’ letter is read as a whole, it is natural to understand (and for the Minister to understand) the emphasised sentence as a reference to the evidence and submissions previously provided by or on behalf of the appellant in support of his application for a protection visa, and not otherwise;
(2)the letter of 8 July 2015 was not sent to the Minister in support of an application for a TPV. It was directed to a different subject matter, namely, the appellant’s request for an exercise of the discretion of the Minister under s 195A and/or s 197AB of the Act allowing him to be released from immigration detention. Considered objectively, that militates against a conclusion that the emphasised sentence was intended to encompass reference to it;
(3)the migration agents’ statement that “we continue to rely” on all evidence and submissions previously provided is, considered objectively, particularly suggestive of an intention to refer to evidence and submissions provided in support of the application for the TPV. It is inherently unlikely that the migration agents were intending to incorporate by reference all evidence and all submissions previously provided by or on behalf of the appellant irrespective of the purpose for which that material had been provided and irrespective of the relevance of that material to the application for the TPV then being made;
(4)independently of these considerations, it is natural on an objective reading to understand the emphasised sentence as a statement by the migration agents that, irrespective of the content of the response of 4 September 2017, the agents were not abandoning reliance on the evidence and submissions previously provided in support of the application for the TPV, and was not implying that those matters may carry less weight; and
(5)there is no evidence that the migration agents were even aware, at 4 September 2017, of the appellant’s letter of 8 July 2015. This adds to the objective improbability of the agents having intended by the emphasised sentence to incorporate reference to it.
For these reasons, even if it be permissible for information to be “given” to the Minister by reference, I do not consider that it can be said that the sentence relied upon by the appellant had the effect of incorporating the letter of 8 July 2015.
This conclusion also means that the appellant’s alternative submission to the effect that the information was given in response to an invitation by the Minister pursuant to s 56(2), must fail. But in any event, the NOICR to which the migration agents were responding appears to have been issued pursuant to s 57(2), and not pursuant to s 56(2).
For these reasons, I would reject the new submission made by the appellant on the hearing of the appeal.
As indicated at the commencement of these reasons, I agree generally with the remaining reasons of Bromwich J and that the appeal should be dismissed with costs. It is not necessary to address the Minister’s notice of contention.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate:
Dated: 28 May 2020
REASONS FOR JUDGMENT
WIGNEY J:
I dissent.
I have read the separate reasons of both White J and Bromwich J. I do not disagree that the appeal grounds that hinge on the proposition that the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs failed to have regard to a mandatory consideration in deciding to refuse the appellant’s visa application have no merit. I am, however, unable to agree that the Minister acted reasonably, in the legal sense, in deciding to refuse the appellant’s protection visa application on the basis that he did not satisfy the character test in subs 501(6) of the Migration Act 1958 (Cth).
In his reasons for judgment, the primary judge observed (Judgment at [99]):
There must be a point at which a perceived risk is so unlikely, or the nature of the risk is so trivial, that a decision to refuse a visa under s 501(1), on the basis that the Minister was not satisfied that a visa applicant passed the character test by reason of s 501(6)(d)(v), would be legally unreasonable in circumstances where the consequences of the decision are of the kind they are here.
His Honour found that this was not such a case. White and Bromwich JJ agree.
I respectfully disagree. In my view this is just such a case.
The flaws and deficiencies in the Minister’s reasoning and factual findings concerning the supposed risk that the appellant might pose to the Australian community and the perfunctory and formulaic consideration that the Minister gave to the harsh and seriously deleterious effect that his decision would have on the appellant compel me to the conclusion that this decision reached the point of unreasonableness referred to by the primary judge. Not only that, but when one stands back and considers the appellant’s circumstances and the effect of the decision, the conclusion that this decision was plainly unjust and manifestly disproportionate is, in my view, unavoidable.
It is necessary to set out the facts and circumstances of the appellant’s case in some detail to fully appreciate why that is so.
RELEVANT FACTS AND CIRCUMSTANCES
The appellant arrived in Australia by boat on 15 November 2012. He was detained in immigration detention for a period of time, presumably on the basis that he did not have a visa and was accordingly an unlawful non-citizen.
On about 16 January 2013, the appellant was granted a Temporary Humanitarian Stay visa and an accompanying bridging visa. He was accordingly released from immigration detention. He continued to peacefully reside in the Australian community without any adverse incident or occurrence for almost a year until the events that ultimately became the basis for the Minister’s decision occurred.
The incident on 12 January 2014
The following account of the incident that occurred on 12 January 2014 is taken mainly from primary source documents, including the contemporaneous documentary records. The appellant gave an account of the incident in both a letter and statement he provided to the Minister. That account was consistent with, or at least not contradicted in any way by, the contemporaneous records.
On 12 January 2014, the appellant was at certain premises in inner Sydney for the purposes of getting a massage. He paid for that massage, but, before he received it, he received a telephone call informing him that his mother had been killed by a bomb blast in Syria. Not surprisingly, he became upset and distressed upon the receipt of that news. He also demanded his money back as he had not received the massage. The combination of those two circumstances resulted in a dispute with the owner of the premises. The police were eventually called.
The following description of the events is taken from a contemporaneous police report:
About 20:45pm on Sunday 12th January 2014 police attended Sabal Massage, 810 George St Haymarket, following calls to police for a dispute for a refund payment of a massage received by [the appellant]. [The appellant] is currently residing in [Sydney suburb] while completing a TAFE course and is a temporary resident in Australia holding refugee status. Police spoke with [the appellant] outside the location where he stated that he wanted to be refunded after his massage. Police spoke with management of the massage who stated to police that [the appellant] had received his massage as advertised, despite [the appellant] removing his underwear before the massage, [the appellant] stated to police that he stopped the massage after receiving a call from a family member informing him of the death of his mother in his home country of Syria. After police spoke with staff of the massage parlour, [the appellant’s] behaviour became more erratic and he became unable to control his emotions … While speaking to police [the appellant] stated that he ‘no longer wanted to live in this world’ and told police that he wished ‘to return to Syria, put a vest and go boom’ while motioning an explosion with his arms. Intel report relating to threats in Syria to be created. Police made attempts to calm [the appellant] as he increasingly became more emotionally unstable. He said to police ‘I don’t want to hurt you, only myself.’ Police became concerned for the mental state of [the appellant] as [sic] requested an ambulance to attend for a mental health assessment, due to [the appellant] saying that he wanted to hurt himself, he no longer wished to live and due to him physically trying to hurt himself, by hitting a wall with his fist and his forehead. Ambulance officers attended a short time later and [the appellant] was conveyed to St Vincents Hospital about 21:30pm for mental health assessment … Police assisted with the convey and remained at St Vincents until 23:50pm, while [the appellant] awaited assessment from the mental health team.
An ambulance record from the evening in question contains the following entry:
On Examination
Primary Survey no immediate life threat
Secondary Survey behaviour agitated & bizarre & inappropriate & threatening; crying / tearful; concentration short attention span
Initial Assessment emotional distress; emotional distress; depression; psychiatric episode
As the police report recorded, the police took the appellant to St Vincent’s Hospital to obtain a mental health assessment. The report completed by the police officer who requested that assessment contained the following description of the circumstances leading to the request for assessment:
[The appellant] became involved in a civil dispute with a massage parlour about services and payment. Afterwards while speaking with Police he stated his mum died back in Syria and now he wants to die, that he wants to back [sic] to Syria and blow himself up. Also stated I want to die my mum is dead and I want to too.
It is clear that the appellant’s mental health was assessed at the hospital. The material that was before the Minister does not include any contemporaneous report of that assessment.
In a letter addressed to the Minister dated 8 July 2015, which the appellant wrote in support of his request to be released from immigration detention, the appellant stated that he was seen by a psychologist at the hospital. He told the psychologist about his mother’s death and the psychologist explained that he was “going through shock because of the news”. The appellant said that he was released and allowed to leave the hospital after a few hours.
While there is no contemporaneous record of the mental health assessment of the appellant which was carried out on the evening of the 12 January 2014 incident, the appellant claimed that he suffered from bipolar disorder at the time. Medical records relating to treatment received by the appellant throughout 2014 and 2015 confirm that the appellant suffered a number of manic episodes during that period that were attributed to his bipolar disorder. Those records are referred to in more detail later.
In the absence of any contrary evidence, there could be little doubt that the incident which occurred on 12 January 2014 was the product of both the appellant’s distress and anxiety at having been told that his mother had been killed and his underlying mental illness. As will be seen, the Minister ultimately accepted that this was the case.
It is readily apparent from the police records concerning the incident that the police did not arrest or charge the appellant, nor take any further action concerning the incident after the appellant was taken to the hospital for a mental health assessment. The police did, however, subsequently conduct an intelligence assessment. The nature of that assessment is referred to later.
The obvious inference to be drawn from the fact that the appellant was not arrested, charged, or detained by the police as a result of the incident on 12 January 2014 is that, like the psychologist at the hospital, the police assessed this incident as being a relatively minor incident which was the direct result of the appellant becoming agitated and distressed when he received news that his mother had died. The police plainly did not consider that the appellant had committed an offence, or that he presented any risk to the public. Plainly he would have been detained if that were the case.
The appellant is detained in immigration detention
According to the appellant, on about 3 February 2014 he was detained and placed in immigration detention at the Villawood Immigration Detention Centre. The basis upon which the appellant was detained is unclear and is not recorded in any Departmental document or other record which was included in the material that was before the Minister. As will be seen, the Minister’s reasons for refusing the appellant’s visa application make no reference to the appellant’s detention or the reasons for it. There is no suggestion in the materials that the appellant’s bridging visa was cancelled.
The appellant claimed that he had applied for a renewal of his visa before the 12 January 2014 incident. He was told that he would have to wait for the Minister to make a decision in relation to that renewal application. It appears that the appellant was told that his visa had expired when he was taken into immigration detention on 3 February 2014. Whether that was in fact the case is, at best, unclear. The appellant subsequently obtained a copy of a Departmental record which gave the following reasons for the appellant’s detention:
Risk Comments: Information rec’d from NSW POL that client threatened to kill himself and others with a bomb strapped to his chest (vest).
That was an apparent reference to the incident which occurred on 12 January 2014. It is not entirely accurate. The police records of the incident stated only that the appellant threatened to kill himself, not “others”. The Department “risk comments” also neglect to note that the threat made by the appellant was to blow himself up in Syria. There was no suggestion that the appellant threatened to do any such thing in Australia.
The police intelligence assessment
On 4 February 2014, the appellant was spoken to by a police officer at the Villawood detention centre for the purposes of an intelligence assessment. As the police report extracted earlier indicated, the assessment was conducted because of the threats that the appellant made during the incident which occurred on 12 January 2014 about blowing himself up in Syria. The interview was not recorded, though the police officer who interviewed the appellant took notes in his police notebook. Those notes are the only contemporaneous record of the interview.
The police officer who conducted the interview did not make a statement about the interview until June 2017. It may be inferred, in all the circumstances, that the police officer only made a statement at the request of the Minister’s Department. That inference is available because the statement was made shortly before the Department sent the appellant a notice advising that the Minister intended to refuse his visa application on character grounds. There is no other reasonable or logical explanation for why the officer would have made a statement at this time given the length of time that had passed since the incident and the fact that the police took no action in relation to it.
In any event, the contemporaneous notes made by the police officer recorded the following (verbatim):
Met with a man in Jakarta who represented Al Quada [sic] in June 2013 to November 2013
-Big man from Australia Rahib, white, black clothes maybe steve (Olsen)
-Travelled to Afghanistan
-30 min out of Jakarta on the beach. 4-5 days
-Training on Sumbawa 6 months
-Train to go back and fight in his country.
-M60 in Bondi, Australian man, Chester Hill mosque. RPGs warehouse, workshop, mechanic, many guns
-send 15-16 men with $100,000
-Muslim man.
-Syrian Army.
-Al Nussra.
-Derra. (hometown).
-Stopped the Sheik and told him about Syria
-Went to Jakarta via plane.
-friends IBRAHIM [mobile phone number redacted] money Vodafone supermarket trolley. call him everyday.
-$5000 us to get Australia
-Mohammad IBRAHIM.
-Lakemba Kingdom Restaurant Albawawee Mohammed.
-Mercedes black
-POI [name indecipherable]
-Attends Friday at the mosque.
-[indecipherable] Gravel road.
-[indecipherable]
-Australian army weapons.
The notes go on to record that the police returned to Villawood detention centre on 6 February 2014 and asked the appellant to sign his notebook to indicate that the police were permitted to access his mobile phone. The balance of the police officer’s notes are blacked-out. The basis upon which the concluding parts of the officer’s notes were blacked-out is unclear and unexplained.
The reason I have set out the police officer’s notes of his conversation with the appellant in full is that they demonstrate that it is almost impossible to glean any coherent or logical narrative from the notes. Plainly the appellant was recounting certain information to the police, including information about other people, events, and observations. It is, however, extremely difficult, if not almost impossible, to ascertain from the notes whether that information about those events and observations is information given to the appellant by other people, or information about what the appellant himself said or did.
To give but one example, the opening lines of the notes refer to a meeting with a man in Jakarta who represented Al Qaeda. That meeting is recorded to have taken place sometime between June 2013 and November 2013. It is, however, unclear whether the appellant was there referring to himself meeting a man at that time or place, or some other person doing so. As will be seen, the Minister interpreted the note as referring to a meeting the appellant had in Jakarta in 2013. The difficulty with that interpretation of the note, however, is that there is no suggestion, let alone any independent evidence, that the appellant was in Indonesia, or even could have been in Indonesia, at any time during 2013. He arrived in Australia by boat in November 2012 and was only released from immigration detention on a temporary visa in January 2013. The suggestion that he may have travelled to Indonesia later that year and then somehow returned to Australia by year’s end is, in all the circumstances, nothing short of fanciful. It is highly unlikely that the appellant would have been permitted to return to Australia if he left for Indonesia sometime in 2013.
It should, in this context, perhaps be added that the Minister plainly would have been in a position to ascertain if the appellant had in fact been in Indonesia during 2013 as the note, at least according to the Minister, supposedly recorded. The Minister undoubtedly has access to international travel records. It seems, however, that the Minister did not trouble himself to ascertain whether the appellant had been to Indonesia in 2013, or, if he did, he did not disclose that in his reasons.
Most of the other information in the note is similarly ambiguous and unclear. The narrative recorded in the notes is also, in parts at least, difficult to decipher or appears to be somewhat nonsensical.
That assessment of the information recorded in the police officer’s notes is entirely consistent with the appellant’s statement concerning the circumstances in which the interview occurred and the truth and reliability of the information which he provided during the interview. The appellant’s statement included the following in that regard:
In February 2014, I was suffering from acute bipolar. I was particularly manic during this time and the consequence is that you feel like you’re invisible and the most important person in the world. I was so manic that I was having hallucinations. The police came to speak to me while I was in detention and they kept asking me questions about Syria and the situation in Syria. I knew what they were looking for and because I was so manic, I decided to give them all the information they wanted. I started to tell them stories that surprised them and I could see that they were getting excited so I continued to tell them what I thought they wanted to hear.
The interview lasted for about 2 hours and at the end the officers asked if there was anything else that I wanted to tell them. I replied, ‘yes, everything I have just told you is a lie’. I think this admission that everything was false is documented in the copy of the police notebook provided to me where the text has been blacked out using a marker. The officers were very shocked when I told them and I don’t believe that they knew anything about my bipolar because if they did I don’t believe they would have interviewed me. I believe I was having a significant bipolar episode at this time and I was so sick that things I said definitely shouldn’t have been taken as genuine.
The officers went away and a few months later my Case Manager told me that I was no longer being investigated and that I had been cleared.
As has already been noted, the police officer who was responsible for the intelligence assessment and who conducted the interview with the appellant on 4 February 2014 did not make a statement concerning the interview until just over three and a half years after the interview. The officer annexed his interview notes to the statement, but said nothing further about the content or subject matter of the interview. Nor did he say anything concerning the appellant’s demeanour during the interview.
Significantly, however, the officer stated that he completed the intelligence assessment and disseminated a report of that assessment to another police officer on 6 February 2014, two days after the interview. There is no indication of what that assessment was. It should be reiterated, in this context, that the police officer’s statement – as opposed to the intelligence assessment – was prepared fairly shortly before the Minister’s Department sent the appellant a notice advising him that the Minister intended to refuse his visa under subs 501(1) of the Act. As has ready been noted, the inescapable inference is that the statement was prepared at the request of the Minister’s Department. There is, however, no indication at all as to whether the Minister or his Department requested or obtained a copy of the police officer’s intelligence assessment, or, if that occurred, whether the intelligence assessment was considered by the Department or the Minister.
Surely if the police intelligence assessment was in any way adverse to the appellant, it would have been highly material to the Minister’s decision and would have been obtained, analysed, and provided to the Minister. The fact that the Minister’s reasons make no reference whatsoever to the intelligence assessment is, to say the least, very surprising. That is all the more so given the appellant’s claim that he was told by an officer of the Department that he had been cleared and was no longer being investigated. The Minister’s reasons do not refute that claim. Nor, as will be seen, do they refute the appellant’s claim that the Australian Security Intelligence Organisation (ASIO) had “cleared him of being of any adverse interest”. The Minister’s silence in relation to that claim, and in relation to any intelligence or security assessment of the appellant by the police or ASIO, was, and is, deafening.
Conduct in immigration detention
The appellant was involved in a number of incidents while he remained in immigration detention. It is again important to have regard to the primary source material in relation to those incidents. That material comprised a series of very brief incident reports. That was the only material that was before the Minister for the purposes of his decision, aside from the appellant’s stated response to the reports.
The first incident was recorded in an incident report dated 3 March 2014. That report simply stated: “[d]etainee [the appellant] stated that he will throw hot water mixed with sugar on another detainee’s face”. The report went on to note that the appellant was “spoken to by CSM [Client Services Manager] [name redacted] with regards to his rights and responsibilities”. It is tolerably clear that the alleged threat was not carried out and that no further action was taken by the detention authorities in respect of that incident.
The appellant stated, in relation to this incident, that it was “provoked by an older man” who pushed him because he was being noisy in the kitchen. The appellant said that he became angry because he believed that he had done nothing wrong and that he did not touch the other man or harm him in any way. There is nothing to suggest that this was not an accurate and reliable account of what, on just about any view, was a very minor incident.
The second incident, which is said to have occurred on 24 June 2014, was recorded in an incident report which was first generated on 4 July 2014. That report in fact recorded a complaint which had been made by the appellant, not the other way around. It stated that, on 24 July 2014 (though that date appears to be a typographical error), the appellant told a detention officer that another detainee had entered the computer room and assaulted him. It was reported, in that context, that the appellant had then stated that he would kill that detainee. That statement appeared to have been made to the detention officer, not the fellow detainee. There is again no suggestion that anyone was harmed, or that the detention officer believed that there was any risk that the appellant would, or even might, in fact carry out the threat, or that any action of any kind was taken against the appellant by the detention authorities as a result of this incident. The report itself characterised the incident as being minor.
The appellant stated, in relation to this incident, that the assault by the other detainee in the computer room was a “completely unprovoked attack” and that he was “still struggling with [his] health at this stage, so [he] became upset”. The appellant said that he did not touch or harm the other detainee and did not intend to do so. There is again no reason to doubt the accuracy or reliability of that account of this incident.
The third alleged incident occurred on 6 April 2015. The incident report in relation to that incident recorded that the appellant approached a detention officer and stated that the appellant wanted to kill him. The officer asked why and the appellant replied “its because you are always serious”. It is recorded that the appellant then tried to get the officer to say phrases in Arabic which meant “Praise Allah”. The officer said that he would not do that and the appellant then walked away “looking upset”. It is again apparent that no action was taken against the appellant in relation to this incident, other than that he was spoken to by another officer who “reminded him of his rights and responsibilities”. Plainly nobody took the threat seriously.
The appellant stated that he did not recall ever threatening a detention officer. He stated, however, that this alleged incident occurred during “an episode of severe mental health”. That would appear to be consistent with the nature of the incident as recorded in the report.
The fourth alleged incident concerned a telephone call that the appellant made to an unnamed officer of the Department on 20 April 2015. It is necessary to provide some context for this telephone call. At this point in time, the appellant had been in immigration detention for just over 14 months. Shortly after the call was made, the appellant wrote to the Minister complaining about his detention and requesting the Minister to exercise his discretion to release him into the community. In that letter, the appellant sought to explain, amongst other things, why he had said what he did about blowing himself up in Syria during the 12 January 2014 incident. It appears to be fairly clear that the telephone call was a prelude to that written request to the Minister.
The report itself is said to concern or report an incident during which the appellant “threatened self harm if he is sent back to his country”. The report stated as follows in relation to that alleged threat:
At approx 12:45 pm of 20 April 2015, DIBP ON Call [redacted] informed Duty Operations Manager [redacted] that detainee [the appellant] threatened self harm. Detainee had rung the GFU unit of DIBP to complain about his request for Ministerial intervention at approx 12:35 pm and mentioned that if he is sent back to Syria, “he will blow himself up”. Detainee also said that he has been in detention for a long time for “no reason” and “had no trouble with Police”. Detainee has been referred to Mental Health. SIS has been submitted by DIBP.
The following points may be made concerning this report.
First, it is readily apparent that the statement allegedly made by the appellant during the telephone call was made in the context about his complaint about his detention. It is equally clear that the appellant believed that his detention was a direct result of the incident which occurred on 12 January 2014.
Second, the account of what the appellant said during the telephone call is at least a third-hand account. The telephone call was made to a person who was on duty at the “GFU [Global Feedback Unit]”, who then reported it to the Duty Operations Manager, who in turn reported it to the person who completed the incident report. There is no first-hand account of the conversation.
Third, the appellant stated as follows in relation to this alleged incident:
The DIBP also refers to an incident in April 2015 where I allegedly threated [sic] to blow myself up again if I was returned to Syria. I recall that this incident was based on a misunderstanding. I had called the Global Feedback Unit to speak to them being in detention for such a long time. I had an Arabic interpreter assisting me and during the course of the conversation I was explaining the January 2014 incident and the allegations made against me to the Global Feedback Unit. The misunderstanding occurred because the Global Feedback Unit believed that I was making fresh threats, which wasn’t correct.
The appellant’s explanation of the incident report in relation to this telephone call was and is entirely credible and plausible in all the circumstances. There is no sound basis for doubting it. The circumstances all clearly point to the fact that the appellant was seeking to explain the 12 January 2014 incident. As will be seen, the Minister found otherwise, though his reasons for so doing are far from satisfactory, let alone persuasive.
Reports relating to security issues while in detention
The reports provided to the Minister included two reports concerning alleged “security issues” which allegedly occurred while the appellant was in immigration detention.
The first report, entitled “Stakeholder Information Sheet”, was prepared by a detention officer on 7 February 2014. It recorded as follows:
During a consultation with the abovementioned detainee, he disclosed the following:
He has been employed, on a voluntary basis, by a company in Lakemba, transferring money from Australia to Syria to be used for ‘the war’.
He is a friend of Osama Bin Laden’s son who has offered to send guns to him in Australia.
He extolled the virtues and philosophy of Osama Bin Laden at length.
On parting, he shook my hand, said thank you, then uttered ‘Osama Bin Laden’
This “consultation” occurred shortly after the appellant was taken into immigration detention. As has already been noted, the appellant stated that at this time he was suffering “acute bipolar” and was “so manic that [he] was having hallucinations”. That is, in any event, readily apparent from the nature of the statements that the appellant was recorded to have made to the officer. Given that the appellant was in immigration detention at the time, the suggestion that he was employed to send money back to Syria and that Osama Bin Laden’s son was offering to send guns to him were self-evidently absurd. Not surprisingly, there is no suggestion that anyone further investigated those absurd claims, or that the claims were investigated and found to have had any substance or basis in reality.
In his statement provided to the Minister, the appellant stated as follows in relation to the suggestion that he had anything to do with Osama Bin Laden:
Secondly, I want to clarify that I do not have, nor have I ever had, links to Al Qaeda, Osama Bin Laden, ISIL or any other religious group or organisation operating in Australia, Syria or any other country. This has been accepted by ASIO, who conducted a thorough assessment about me and cleared me as being of any adverse interest to them. If I had links to any groups or organisations or I was considered a threat, I would not have been cleared by ASIO.
It should perhaps be noted in this context that, aside from statements allegedly made by the appellant, there was nothing in any of the material which was before the Minister to suggest that the appellant did in fact have any links or association with Al Qaeda, Osama Bin Laden, ISIL, or any other religious group or organisation operating in Australia, Syria, or any other country.
The second report, entitled “Security Information Report”, is of some importance as it provided the basis for a significant adverse finding that the Minister made against the appellant. It accordingly should be set out in full:
I, [redacted] was rostered as Mike 1 in Hotham compound from 2000 to 0800 on 07/04/2015. At approximately 2050 hours, Detainee known to me as [the appellant] a resident of Hotham compound residing in Unit 3 Room 6 attended Hotham Officer’s station and demanded sugar in a loud voice and staring at staff with bulging red eyes. Ten minutes later at 2100 hours, He attended Hotham Officer’s station once again and demanded tea bags in the same manner despite having a bag full of tea inside Hotham Unit 3 common kitchen. Speaking to Hotham detainees few minutes after the incident, I was told that there has been a lot of concern and apprehension amongst fellow Hotham Detainees regarding his ongoing weird behaviour in the compound. He allegedly were [sic] entering other detainees rooms without their permission and pissing most of them off really badly. They warned that they might not be able to control themselves from harming him if he does not stop trespassing in their rooms even if he is not taking anything away. The other day he threatened to kill a Hotham Staff member because he was allegedly hearing voices telling him that he is an infidel. Also he allegedly recruiting fellow detainees to fight for ISIL in Syria.
(Emphasis added.)
The following points may be made concerning this report.
First, the report is entirely consistent with the appellant’s claims and the contemporaneous medical records that the appellant was suffering from acute bipolar and having hallucinations at this time. The appellant was reported as having “bulging red eyes” and the reporting officer plainly considered that his actions were highly unusual, which is no doubt why he or she spoke to the appellant’s fellow detainees about the appellant’s behaviour. The other detainees referred to the appellant’s “ongoing weird behaviour”.
Second, the reference in the report to the appellant having previously threatened a staff member would appear to be a reference to the 6 April 2015 incident referred to earlier. The suggestion that the appellant was “hearing voices telling him that he is an infidel” is again entirely consistent with the appellant suffering the effects of his acute bipolar condition at this time.
Third, and significantly, the source of the information in the final sentence of the report, that the appellant was “allegedly recruiting fellow detainees to fight for ISIL in Syria”, is somewhat unclear. It is not said to be something about which the reporting officer had any direct or firsthand knowledge. It is unclear whether this was something that had been reported by unnamed fellow detainees, or was something the officer was told by someone else. There is no separate report in relation to that allegation. Nor is there any suggestion that it was something that was further investigated or followed up by the detention authorities, or the Minister’s Department or anyone else. There is no indication that any action was taken against the appellant as a result of this report.
Fourth, the appellant stated that the alleged incidents referred to in this report, including the claim that he had tried to recruit other detainees to fight for ISIL, occurred during a time that he was suffering acute bipolar. He said that, given his mental state at the time, he had no recollection of ever trying to recruit other detainees to fight for ISIL. Given that the fellow detainees were all self-evidently in immigration detention, it would, in any event, have been a fairly absurd thing to do.
Medical reports and the appellant’s mental health
The Minister appeared to accept that all of the relevant incidents, including the 12 January 2014 incident, occurred during a period of time that the appellant’s behaviour was impaired by bipolar disorder. It is nevertheless useful to identify what was said about that in the contemporaneous documentation.
A report from the International Health and Medical Services (IHMS) noted that the appellant “required a psychiatric assessment and admission in a hospital in between 11-14 Mar 2014 due to angry outburst and disturbed behaviour”. An IHMS psychiatrist commented on 17 March 2014 that the appellant’s “irrational behaviour was a result of [the] stress of moving back to the detention centre” and noted that the appellant had been prescribed “anti-psychotic medication”. On 20 August 2014, an IHMS psychiatrist recommended that the appellant be released to community detention, no doubt because his psychiatric condition was being worsened by his ongoing detention. On 26 September 2014, an IHMS psychiatrist commented that the appellant may be suffering from “Bipolar Affective Disorder”. On 5 November 2014, the psychiatrist advised that the appellant may have “experienced some dissociative symptoms due to his difficult situation and anxiety” and that “[o]ngoing mental health management [was] required”. Finally, the report noted that the psychiatrist “acknowledged [that the appellant’s] irrational behaviour is directly linked to his return to held detention” and advised that the “detention environment is not appropriate or conducive to [the appellant’s] major mental health condition”.
The advice and recommendations of the IHMS psychiatrist in relation to the appellant’s mental health was plainly not acted on by the Minister or his Department. The appellant remained, and apparently still remains, in immigration detention. The more significant point, for present purposes at least, is that the IHMS psychiatrists were in no doubt that the appellant’s irrational behaviour was the product of his mental health issues and ongoing detention.
A document which contained “Case History Notes” prepared in the emergency department of Bankstown-Lidcombe Hospital on 26 February 2015 recorded that according to “police and ambulance handover”, the appellant had been “agitated” and had been “scheduled as [he] believed that jesus had been in the detention centre”. The appellant was “found to be very agi[t]ated and aggressive and thought disordered” and “manic”. He was prescribed various medication.
A discharge summary from an unnamed hospital dated 1 March 2015 referred to the appellant presenting at the hospital with “grandiose ideas” and diagnosed “Bipolar affective disorder, current episode hypomanic”.
The appellant stated that the incidents which occurred between January 2014 and April 2015 represented “a particularly difficult and unfortunate period in [his] life and were very out of character”. His health was “at its worst” during that period. As for his current health and behaviour, he stated:
My mental health concerns have since improved, I don’t require any medication and am managing my condition well. It appears that my health deteriorated between 2014-2015 because of the intense stress that I was under, was triggered by information that my mother had been killed in an explosion (which I later found out was not correct) and exacerbated by my re-detention into a high security centre where I was amongst criminals during a period when I was sick and vulnerable. I have since learned techniques to manage my stress and I also have excellent support from members of the community which has helped me a lot.
As will be seen, the Minister accepted that the appellant’s mental health and behaviour had improved since April 2015.
Behaviour between April 2015 and the date of the Minister’s decision
The appellant was not involved in any adverse incidents or bad behaviour in the almost four-year period between April 2015, which was the date of the last reported incident in immigration detention, and 4 February 2019, the date that the Minister refused the appellant’s visa application on character grounds.
Not only had the appellant not been involved in any adverse incidents, but there was evidence before the Minister which clearly demonstrated that his behaviour in immigration detention had been exemplary. A letter from a senior officer of the Australian Border Force dated 26 June 2017 reported that the appellant had been in immigration detention on Christmas Island since 3 November 2016 and that, on 22 June 2017, he was transferred to an “Incentive Program” which was designed to “reward detainees with ongoing good behaviour and positive demeanour”. A certificate of appreciation signed by the officer on 22 June 2017 recorded that the Australian Border Force had identified the appellant as “someone who has demonstrated on-going positive behaviours in immigration detention and has contributed to the good order of the Christmas Island Immigration Detention Centre”.
The appellant also supplied the Minister with a number of impressive character testimonials which had been provided by members of the public who had interacted with the appellant during the years that he had been in detention.
The appellant further supplied the Minister with a statutory declaration in which he declared that he had never been charged, let alone convicted, of any criminal offence in any country. There was nothing to suggest otherwise.
THE MINISTER’S REASONS
The Minister’s reasons are divided into two main sections. The first section dealt with the Minister’s findings in relation to the character test. The second section dealt with the Minister’s exercise of his discretion.
Upon close consideration, a number of the critical findings made by the Minister, or critical elements of the Minister’s reasoning, may be seen to be fundamentally flawed and manifestly unsatisfactory, to the point of being irrational or illogical.
Findings and reasoning in relation to the character test
The only element of the character test that the Minister addressed was the element in subs 501(6)(d)(v) of the Act, which provided that a person does not pass the character test if, in the event that the person were allowed to enter or to remain in Australia, there is a risk that the person would “represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way”.
The Minister addressed that element of the character test by reference to the incident which occurred on 12 January 2014, the statements the appellant made to the police on 4 February 2014, and the appellant’s conduct while in immigration detention.
Findings concerning the 12 January 2014 incident
While the Minister’s reasons recorded that he “noted” various things in relation to the 12 January 2014 incident, the only actual finding he made concerning that incident was that the appellant “did make a threat to kill himself with a bomb on this occasion”: Reasons at [16]. It is perhaps not surprising that the Minister made that finding as it was essentially not in dispute. It would, however, be erroneous to consider that finding in isolation or out of context.
It is significant, in that regard, that the Minister did not at any point reject the appellant’s account of what occurred during this incident. Nor did the Minister reject the appellant’s explanation for how he came to make that threat. Specifically, the Minister did not reject or even question that: the appellant’s threat was limited to blowing himself up in Syria and that there was no suggestion that he would or might do so in Australia; the threat was the direct result of the appellant hearing news of his mother’s death as a result of a bomb blast in Syria; the appellant’s response to that news was exacerbated by his, at that stage, untreated acute bipolar disorder; and the appellant was not arrested or charged with any offence arising out of the incident. A fair reading of the Minister’s reasons suggests that he accepted those claims by the appellant, but even if that is not the case, the Minister certainly did not reject any of them. Nor, it might be added, was there any sound basis for rejecting any of those claims given the nature and content of the material that was before the Minister.
The fact that the Minister did not reject the appellant’s claims in relation to the 12 January 2014 incident is particularly relevant when one comes to consider the Minister’s assessment of the risk posed by the appellant. As will be seen, that assessment was illogical and involved a mischaracterisation of the incident and a fundamental failure to appreciate the extenuating circumstances in which it occurred.
Findings in relation to the statements made to the police
The Minister again “noted” a number of things in relation to this topic, but his finding was limited to a finding that “the fact that he made those claims at all may demonstrate an ideology of security concern, which I take seriously particularly given the current global context”: Reasons at [21]. That rather curious finding raises more questions than it answers: first, what were “those claims”; second, what is the “ideology of security concern”; third, what is the “current global context”; and fourth, what of the appellant’s clear claim that the events or occurrences he reported to the police were nonsense and a product of his manic and deluded mental state at the time. How could the fact that the appellant made the reported statements to the police, without more, demonstrate that he has an “ideology of security concern”, whatever that may mean, in the “current global context”, whatever that was, if what the appellant told the police was manifestly nonsense and the product of his manic state and hallucinations?
Even putting those imponderables to one side, there are also some demonstrable flaws and deficiencies in the Minister’s reasoning and factual findings in relation to this topic. Those flaws and deficiencies are detailed later in these reasons. It suffices to note at this stage that the material before the Minister about the statements made to the police in the context of the security assessment provided no basis for any finding that the appellant had any actual links or associations with Al Qaeda, Osama Bin Laden, ISIL, or any other extremist individuals, groups, or organisations. Nor was any such finding made.
Findings concerning the appellant’s conduct in immigration detention
As has already been discussed in some detail, the only material that was before the Minister in relation to the incidents which were said to have occurred while the appellant was in immigration detention were a series of incident reports. The appellant gave clear and unambiguous responses to the incident reports. While the Minister “noted” or said that he had “considered” the appellant’s claims concerning the incidents and the circumstances that gave rise to them, for the most part, the Minister failed to make any clear and unambiguous findings in relation to the incidents.
The Minister did state that he had “placed greater weight on the reports” and that he “considered that those reports are likely to provide accurate and reliable descriptions of [the appellant’s] behaviour while in immigration detention” (Reasons at [33]), but that did not resolve all of the issues that arose concerning the alleged incidents and the circumstances in which they occurred. It only dealt with the few occasions where the appellant’s account of the incidents directly contradicted what was in the reports. Placing greater weight on the reports did not address the appellant’s claim that all the incidents occurred, and were the product of, his manic and at times psychotic state, or his claim that his poor mental health was exacerbated by his detention. It did not address the appellant’s explanations concerning his verbal altercations with other detainees, including the fact that he did not touch or harm the other detainees and never intended to do so. It did not address the appellant’s claim, in relation to the statements that he allegedly made to one of the detention officer’s concerning Osama Bin Laden’s son and related matters, that he had no allegiance or connection with Osama Bin Laden or Al Qaeda and that the statements were simply the product of his manic state and hallucinations.
In any event, the Minister ultimately made only two findings of significance in relation to the appellant’s conduct during immigration detention. Both of them are dubious and supported by reasoning that is, at the very least, unpersuasive and unsatisfactory.
The first finding was that the appellant “made a threat to blow himself up in April 2015 during his contact with the GFU”: Reasons at [35]. The Minister appears to have rejected the appellant’s claim that his telephone call with the GFU in April 2015 related to his complaints about being in immigration detention for so long, apparently as a result of the January 2014 incident, and that the only reference that he made to blowing himself up during that telephone call was when he was seeking to explain the circumstances of the January 2014 incident.
The second finding made by the Minister was that he was satisfied that the appellant “did make claims that suggested that he was recruiting people to ISIL as alleged, even though he may no longer remember it himself due to his mental health condition”: Reasons at [36]. That finding was based entirely on one line in a security information report in which a detention officer recorded second- or third-hand hearsay accounts from unnamed detainees concerning the appellant’s “ongoing weird behaviour in the compound”. The single line is “[a]lso he allegedly recruiting [sic] fellow detainees to fight for ISIL in Syria”. The source of that assertion or allegation is entirely unclear.
The significant deficiencies inherent in those two findings are addressed in detail later in these reasons.
The Minister’s conclusions in relation to the character test
The Minister’s conclusions concerning the application of subs 501(6)(d)(v) of the Act to the appellant’s circumstances should be set out in full (Reasons at [44]-[46]):
I have accepted that [the appellant’s] previous conduct, as described by NSW Police and Serco staff in the documents mentioned above, has resulted from his bipolar affective disorder, and that his mental health and behaviour have improved since April 2015. I have also considered the submissions made by [the appellant’s] migration agent that his conduct does not amount to serious conduct and is not a genuine reflection of his character.
However, I have found that there remains a risk that [the appellant] would represent a danger to the Australian community by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, the Australian community. In coming to this conclusion, I considered that the pattern of behaviour he has exhibited, including his threats to blow himself up in January 2014 and April 2015, his repeated claims of association with extremist groups and the threats he made to other detainees and Serco staff while in detention, are of significant concern. I have found that, even if his claims about his associations with extremist groups are not true, the very fact that [the appellant] has repeatedly made those claims may demonstrate an ideology of security concern, which I take seriously particularly given the current global context. In this regard, I have also considered the non-disclosable information.
Although I consider there is a low likelihood of [the appellant] carrying out his threats, I consider it to be more than a minimal or remote chance. Further, I considered that the threats made by [the appellant] cannot be ignored in the current global context. In this respect, I considered that, in the event that any of [the appellant’s] threatened activity (including his threat to blow himself up) was carried out in Australia, this would likely result in significant harm to the Australian community.
As can be seen, the critical finding made by the Minister was that there was a risk that the appellant would, if permitted to remain in Australia, represent a danger to the Australian community because he was either liable to become involved in activities that are disruptive to the Australian community, or liable to become involved in violence threatening harm to the Australian community. It is not entirely clear exactly what “disruptive” activities or violence the Minister found that the appellant was liable to become involved in. Reference was made to “threats” and “threatened activity”, though the only specific threat which is referred to by the Minister is the appellant’s threat to “blow himself up”. That was plainly a reference to the January 2014 incident.
The main basis of the Minister’s critical finding was said to be the “pattern of behaviour” that the appellant was said to have exhibited, which the Minister considered to be of “significant concern”. That pattern of behaviour included the appellant’s “threats to blow himself up”, his supposed “repeated claims of association with extremist groups”, and the “threats he made to other detainees and Serco staff while in detention”. The Minister’s findings and reasoning in relation to those matters are analysed in detail later in these reasons. It suffices at this point to simply note that, upon close analysis, the Minister’s reasoning was significantly flawed and deficient in certain respects, and the critical findings were not reasonably open on the material considered as a whole.
The Minister’s exercise of the discretion in subs 501(1) of the Act
Having found that he was not satisfied that the appellant passed the character test because there was a risk that, if the appellant remained in Australia, he would “represent a danger to the Australian community … whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community”, the Minister considered whether he should in those circumstances exercise his discretion under subs 501(1) of the Act to refuse the appellant’s visa application. He found that he should.
The Minister’s decision to exercise that discretion hinged on five critical findings: first, that the appellant’s past conduct was “serious in nature”; second, that the appellant represented a “significant risk” to the Australian community; third, the Australian community would expect that the appellant would not be granted a protection visa; fourth, that it had been found that the appellant, if returned to Syria, would face a well-founded fear of persecution; and fifth, the result of the refusal of the appellant’s visa application would be that he would be liable to removal to Syria as soon as reasonably practical despite the fact that his removal would breach Australia’s international non-refoulement obligations. The first three findings weighed in favour of refusing to grant a visa and the last two findings weighed against the grant of a visa.
It is necessary to briefly address the Minister’s reasons in relation to each of those findings.
Seriousness of past conduct
The basis of the Minister’s finding that the appellant’s past conduct was “serious in nature” is difficult to comprehend. It is supported by virtually no probative or logical reasoning.
The Minister referred, on the one hand, to the factual findings he had made in relation to the threats the appellant had made to blow himself up, the claims that the appellant had made regarding his “associations and past activities” which were said to be of “serious concern”, the threats the appellant made to fellow detainees and detention centre staff, and the claim that the appellant was recruiting fellow detainees to fight for ISIL: Reasons at [53]. The material that was before the Minister, and the findings that were made by the Minister in relation to those matters, have been addressed at length earlier in these reasons.
On the other hand, the Minister referred to his acceptance that the appellant’s conduct resulted from his bipolar disorder and that there was accordingly doubt about the “credibility” of his claims concerning his alleged association with particular extremist groups: Reasons at [54]. In other words, the Minister accepted that, despite what the appellant had been reported to have said, he may not in fact have been associated with any extremist groups. It should be reiterated that, aside from the documents that recorded the appellant’s statements, there was nothing whatsoever before the Minister to suggest that the appellant was in fact associated with any extremist group.
The Minister then simply concluded that the appellant’s conduct was “serious in nature, having regard to the current global context and the non-disclosable information”: Reasons at [55]. The Minister did not explain what he meant by the “current global context” and did not shed any light on the general nature of the “non-disclosable information” or how or why it impacted on his conclusion. He did not, for example, indicate whether that information related to the “current global context” generally, or the appellant specifically, or something else.
More will be said about this conclusion later in these reasons. It suffices at this point to note that it is difficult to see how the Minister could reasonably have come to this conclusion had he given careful and proper consideration to the material that was before him. In particular, while a threat to blow oneself up might, considered in isolation, be thought to be serious, when the particular threat made by the appellant is considered in the context of all the surrounding facts and circumstances, it is difficult to see how it could reasonably be said to be “serious in nature”, whatever the “current global context” might be. It is equally difficult to see how any of the other incidents, properly considered in context, could be said to be serious.
Significant risk to the Australian community
The Minister said that, in making the finding that the appellant represented a significant risk to the Australian community, he had considered or had noted the information or submissions concerning the following matters: the fact that the incidents were the result of the appellant’s bipolar affective disorder; the fact that the appellant’s mental health and behaviour had improved since April 2015; the fact that the January 2014 incident was triggered by a period of extreme stress following the receipt of information by the appellant that his mother had died and as a result of him being detained; the fact that there had been no adverse incident since April 2015 and indeed the appellant’s behaviour since that time has been exemplary; and the fact that the appellant had never perpetrated any harm or violence against any person, or been subjected to any further discipline, or been charged with any offence. The Minister did not reject any of those matters. The Minister also said that he took into account the submission that the appellant had been “cleared from any investigations by ASIO and the police on the basis that [he] was not an adverse security risk”. The Minister did not reject that submission, or suggest that there was any reason or basis not to accept it.
Despite those considerations, the Minister concluded as follows (Reasons at [61]-[62]):
While submissions made by or on behalf of [the appellant] tend to suggest a low likelihood of [the appellant] carrying out his threats, the likelihood is not negligible. In this respect, I have also considered the non-disclosable information. Should [the appellant] carry out his violent threats in Australia, it would likely result in injury or loss of life to members of the Australian community.
Having particular regard to the extremely serious nature of the claims and threats made by [the appellant], I have found that the potential harm is so great that any likelihood that it would occur represents a significant risk to the Australian community. I have placed significant weight on this consideration.
That conclusion will again be analysed in greater detail later. It suffices at this point to note that it is difficult to ascertain or comprehend the basis upon which the Minister concluded that the risk that the appellant would “carry out” his “violent threats” was “not negligible”. It is equally confounding that the finding appeared to be based on the Minister’s speculation about the harm which would result if those “violent threats” were carried out in Australia in circumstances where the only relevant or significant threat made by the appellant related to him blowing himself up in Syria, not in Australia.
Expectations of the Australian community
The Minister found that the Australian community would expect that the appellant would not be granted a protection visa.
It would appear that the main basis for that finding was that the appellant had engaged in “serious conduct”. It was said, in that regard, that “Australia has a low tolerance of any serious conduct by visa applicants” and that there should be “no expectation that foreign nationals who have engaged in serious conduct should be allowed to remain in Australia”: Reasons at [63].
The Minister said that he had considered the appellant’s submissions that he had no criminal history and that the nature of his conduct was not such that the Australian community would expect that he not be granted a visa, particularly given his mental health and personal circumstances. The Minister also said that he had regard to the appellant’s submissions that he had very compelling protection claims and that the refusal of his visa application gave rise to the “risk of indefinite detention”. The Minister found, however, that the Australian community would place greater weight on other considerations. He concluded (Reasons at [66]):
However, I considered that the Australian community would place greater weight on the need to protect the Australian community in light of the nature and seriousness of the claims and threats made by the [the appellant] and the current global context, and would expect that [the appellant] would not be granted a protection visa. I have placed significant weight on this consideration.
It can be seen, once again, that the Minister’s finding concerning community expectations turned largely on his findings about the “nature and seriousness of the claims and threats” made by the appellant. Those findings will be addressed later.
Well-founded fear and Australia’s international non-refoulement obligations
The Minister accepted that his Department had determined that, if returned to Syria, the appellant would “face a well-founded fear of persecution at the hands of the Assad-led regime or opposing rebel forces including a threat to or loss of liberty or life, significant physical harassment and ill treatment, arrest and imprisonment, torture and enforced disappearance”: Reasons at [67]. The effect of that determination was twofold. First, it would follow that, but for the Minister’s exercise of discretion pursuant to subs 501(1), the appellant would almost certainly have been entitled to the grant of a protection visa. Second, it would also follow that if Australia returned the appellant to Syria, it would be in breach of Australia’s international non-refoulement obligations. The Minister accepted, in that context, that there was “currently no known prospect of removal to any other country”: Reasons at [68].
Having found that the appellant was a person in respect of whom Australia had international non-refoulement obligations, the Minister went on to consider the consequences of a decision to refuse the appellant’s visa application under subs 501(1) of the Act. The Minister reasoned as follows in relation to those consequences (Reasons at [69]-[71]):
I am aware that the statutory consequence of a decision to refuse to grant [the appellant] a visa is that, as an unlawful non-citizen, [the appellant] would become liable to removal from Australia under section 198 of the Act as soon as reasonably practicable, and in the meantime, detention under section 189. I am also aware that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has international non-refoulement obligations in respect of an unlawful non-citizen.
I have noted that the obligation to remove [the appellant] would not apply if, following my refusal to grant him a Temporary Protection (subclass 785) visa, he is granted another visa. However, I am aware that as a result of a refusal decision under section 501(1), there will be significant restrictions on his ability to apply for another visa. In particular, I understand that [the appellant] will be prevented by section 48A of the Act from making a further application for a protection visa while he is in the migration zone (unless I determine, under section 48B of the Act, that section 48A of the Act does not apply to him). Application for a visa other than a protection visa will be subject to section 501E of the Act, which will apply to [the appellant] as a result of my refusal decision under section 501(1). This will mean that, without leaving the migration zone, he will not be able to apply for any visa other than a Bridging R (Class WR) visa (as prescribed by regulation 2.12AA of the Migration Regulations 1994)), which he could only apply for in response to an invitation.
I am mindful that even if I refuse to grant [the appellant] a Temporary Protection (subclass 785) visa, I have a personal non-compellable power in section 195A of the Act to grant a visa to him if I think it is in the public interest to do so. I am also mindful that if I do not consider exercising that power, or do not exercise it in [the appellant’s] favour, he will be liable to removal as soon as reasonably practicable in accordance with section 198 of the Act, including to Syria, having regard to section 197C.
The Minister’s reasoning and findings concerning the consequences of a decision to refuse the appellant’s visa application pursuant to subs 501(1) of the Act will be considered in more detail later. It suffices to note at this point that, having read those paragraphs of the Minister’s reasons, one could perhaps be excused for thinking that there was at least some prospect that the appellant might be able to secure some other visa; that he would not necessarily be refouled to Syria. The reality, however, was that the almost inevitable consequence of a decision to refuse the appellant a protection visa under subs 501(1) was that the appellant would remain in immigration detention until it was reasonably practicable to return him to Syria in breach of Australia’s international non-refoulement obligations. The question whether the Minister gave any genuine consideration to that consequence is considered later.
The Minister’s weighing of the considerations and conclusion
The Minister considered and weighed the findings he had made and concluded as follows (Reasons at [79]-[80]):
I found the above considerations in favour of refusal outweighed the countervailing considerations in [the appellant’s] case, including the potential harm for [the appellant] if he is returned to Syria, Australia’s international non-refoulement obligations, and his mental health concerns.
I am cognisant that where significant harm could be inflicted on the Australian community, even strong countervailing considerations are generally insufficient for me not to refuse the visa. In the present circumstances, I found that the risk posed by [the appellant] to the Australian community is unacceptable.
The question whether that conclusion and the resulting exercise of discretion to refuse the appellant’s visa application was legally reasonable in all the circumstances is considered later in these reasons.
LEGAL UNREASONABLENESS, IRRATIONALITY AND ILLOGICALITY
It is well settled that a discretionary power which is conferred by statute is subject to the implied condition or presumption that it be exercised reasonably. A decision maker who fails to exercise a discretionary power reasonably thereby fails to exercise the discretion within jurisdiction or, to use the now familiar language employed in such cases, commits a jurisdictional error. It is also well accepted that, in certain circumstances, a decision maker may commit a jurisdictional error if they make material findings of fact in the absence of probative evidence, or otherwise engage in illogical or irrational reasoning. That is particularly so where the faulty findings or reasoning relate to a jurisdictional fact, or are otherwise material to the ultimate conclusion or exercise of the relevant discretionary power.
The second stage of the appellant’s alternative argument is that the sentence “We continue to rely on all evidence and submissions previously provided by or on behalf of our client” falls within the s 56(2) concept of to “give”. This argument must fail because the requirement to have regard to information that a visa applicant gives cannot properly be understood to extend to information that a visa applicant does not give, but only refers to. The whole point of the regime for information reflected in ss 54, 55 and 56 is to limit it to information that has actually been given, and then to require the Minister to have regard to it.
This ground of appeal must fail because the primary judge was plainly correct. The statutory language and context leave no room for finding that pre-visa application information provided by a visa applicant of the kind contained in the 8 July 2015 letter is a mandatory relevant consideration in considering such an application.
Ground 2
Strictly speaking it would not matter if this ground succeeded, because even if it was shown that the peaceful existence submission in the 8 July 2015 letter relied upon was not considered, that could not vitiate the Minister’s decision given the absence of any obligation to consider it. However the ground has been raised and should be dealt with.
The primary judge concluded, in the alternative (at [148]), that in any event:
(1)the appellant had not established that the 8 July 2015 letter was not taken into account;
(2)the peaceful existence submission in the 8 July 2015 letter was not materially different from submissions that were taken into account; and
(3)the substance of the matters said not to have been taken into account (of which the peaceful existence submission in the 8 July 2015 was only a part) was reflected in the material otherwise overtly before the Minister and it had not been demonstrated that material was not considered.
Each of those points were expanded upon by his Honour in some detail (at [149]-[163]).
The appellant does not engage with the first point made by the primary judge above, namely that it was not demonstrated that the peaceful existence submission in the 8 July 2015 letter relied upon was not taken into account. It is worth noting that letter itself and other aspects of its contents were expressly referred to in the Minister’s reasons at [9] and [13]. This poses a formidable hurdle to any successful argument that not specifically referring to the peaceful existence submission means that it was not considered, as opposed to being insufficiently material or different from other information to warrant any separate mention. This is a sufficient basis on its own for ground 2 to fail.
The balance of the appellant’s submissions rely upon the asserted importance of the peaceful existence submission in the 8 July 2015 letter to submit that this was sufficient to demand not just that the reference be considered, but that it be given such weight and importance as to demand an active intellectual process be applied to it, and presumably some analysis of it in the Minister’s reasons. This overstates the significance of the peaceful existence submission and encroaches upon the obligation not to engage in merits review. It does not address the primary judge’s second conclusion (at [148], summarised at [317(2)] above) that the peaceful existence submission in the 8 July 2015 letter was not materially different from submissions that were taken into account going to the question of risk, which was accepted to be low, let alone establish any error in that conclusion. Even assuming that the Minister was obliged to have regard to the peaceful existence submission in the 8 July 2015 letter, that does not mean it was required to be expressly manifested in the reasons for refusing to grant the visa. This is especially so when the appellant did not see fit to mention it in his response to the Notice, and the substance of the submission going to his low risk to the Australian community was able to gleaned from other material that was referred to.
This ground must fail because the appellant has not established any error on the part of the primary judge.
Ground 4
This ground of appeal takes issue with the primary judge’s conclusion, at [100], that there was a rational basis for the Minister to find that the appellant did not pass the character test. The appellant also asserts that his Honour erred in finding there was no legal unreasonableness in the Minister exercising his discretion to refuse the grant of the visa, and concluding that the factors in the appellant’s favour and the detriments he faced were outweighed by the serious consequences if the identified risk to the Australian community materialised.
While the appellant focuses on the primary judge’s reasons at [100], that paragraph needs to be considered in the context of the preceding paragraphs, including in particular [97]-[99], which followed a detailed consideration of the Minister’s reasons by his Honour. Those four paragraphs are as follows:
[97] As is evident from its terms, a main purpose of s 501 is protection of the Australian community – see also: Stretton at [15] (Allsop CJ). The breadth of the discretionary power to cancel a visa under s 501(2) on character grounds was examined by Griffiths J in Stretton at [65] to [71]. The power to refuse to grant a visa under s 501(1) is similarly broad. Sections 501(1) and 501(6)(d)(v) are to be read in the context of the purposes of the Act as a whole. One such purpose is expressed in s 4 as: “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”. The concept of the “national interest” is necessarily broad.
[98] The applicant accepted in oral argument that it was open to the Minister to conclude that the applicant posed a low threat in the sense that there was a low chance of the relevant conduct occurring. The nature of the consequences to the Australian community if the relevant conduct occurred were not suggested to be other than potentially serious.
[99] The Minister was faced with a difficult decision, balancing the low threat of serious harm to the Australian community with potentially life-threatening consequences to the applicant. Not everyone would agree with the result as a matter of merit. This Court’s role is limited to ensuring that the Minister acted within the bounds of legality: Stretton [12] to [13] (Allsop CJ). There must be a point at which a perceived risk is so unlikely, or the nature of the risk is so trivial, that a decision to refuse a visa under s 501(1), on the basis that the Minister was not satisfied that a visa applicant passed the character test by reason of s 501(6)(d)(v), would be legally unreasonable in circumstances where the consequences of the decision are of the kind they are here. It has been accepted that “proportionality” has a role to play in the sense that an obviously disproportionate response might be a pathway to a conclusion that the decision was unreasonable: Stretton at [57] (Griffiths J), citing Li at [74]; see also Stretton at [15] and [21] (Allsop CJ). That concept obviously cannot become a back door way of introducing merits review, as was made clear in Li and Stretton.
[100] Here, there was a rational basis for the Minister to conclude that there was a low risk of relevant conduct occurring and that, if the applicant were to carry out in Australia a threat of the kind he had made in the past, the consequences would or could be extremely serious. The Minister’s decision that, in those circumstances, a protection visa should not be granted, notwithstanding the heavy considerations which weighed against such a conclusion, was one a decision-maker could reach without committing jurisdictional error on the basis of legal unreasonableness.
The explanation of the statutory framework identified by the primary judge at [97] was not questioned on appeal. Moreover, the concessions made by the appellant in oral argument before his Honour, and the way in which the case was conducted by the appellant, noted by his Honour at [98], were not sought to be withdrawn, or challenged as being inaccurately recorded, respectively. This appeal therefore had to be decided upon the basis that it was open to the Minister to conclude that there was a chance, albeit low, of the threatened conduct occurring in Australia, and that if that was to occur it would be potentially serious.
Sections 501(1) and (6)(d)(v), have been cast by the legislature in wide terms, with low thresholds, referable to the broad concept of “national interest”. A visa applicant does not pass the character test if found to meet a threshold as low as “a risk” of representing a “danger to the Australian community”. Representing a danger of this nature expressly includes merely “being liable to become involved in activities that are disruptive to, or in violence threatening harm to”, the Australian community, but can also occur “in any other way”. With a minimum threshold for “danger” being as low as being liable to be disruptive to the Australian community, and potentially even lower in some other way, the Minister has a very wide area within which to exercise a genuinely free discretion: Li at [66].
Because s 501(6)(d)(v) does not refer to any particular level of risk, be it high, low, remote or negligible, it is an evaluative exercise for the Minister to conduct as to whether any such risk exists, and if so, what the consequences might be. A conclusion of legal unreasonableness in the assessment of whether the degree of risk posed is above zero is inherently going to be very difficult to find, even in quite a factually extreme case. Correspondingly, when it comes to the exercise of the discretion to grant the visa sought, despite not being satisfied that the visa applicant has passed the character test, it is for the Minister to determine whether that degree of risk is acceptable or not, including whether it is outweighed by countervailing considerations.
In the exercise of a statutory power which requires reaching a state of satisfaction, in this case refusal to grant a visa under s 501(1) if the Minister was not satisfied that the appellant passed the character test, an implied condition is that this state of mind be arrived at rationally, including that findings of fact be based on evidence that is rationally probative of the fact in issue: BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54 at [40]. While this challenge was brought upon the basis of asserted legal unreasonableness, not irrationality per se, the assessment of whether the material before the Minister was capable of supporting the impugned conclusions reached is much the same. Legal capacity of such material, rather than its weight, goes to the lawfulness of the exercise of power, not the merits of that exercise of power. It is akin to the difference between the role of a tribunal of law in deciding whether evidence has the legal capacity to prove a fact, such that there is a case to answer, and a tribunal of fact in assessing evidence to determine whether a fact in issue has been proven. Thus, in a criminal jury trial, “if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision” and may only be taken away from the jury by a directed verdict “if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty”: Doney v The Queen (1990) 171 CLR 207 at 214-15. It hardly seems likely that an administrative decision-maker has less latitude to evaluate material that lacks quality than a jury deciding the question of whether guilt of a serious criminal offence has been established.
The legal capacity of the material before the Minister to support the conclusions reached will not necessarily be lacking if it is weak, or capable of a benign explanation, or might support a different conclusion, because that is merely something about which reasonable minds may differ, perhaps even vociferously: see BFH16 at [29], citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [96] and [130], and ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [47].
The appellant’s submissions attack both:
(1)the reasoning process by the Minister, especially at [46] and [61], reproduced above; and
(2)the outcome, especially at [79], reproduced above and again below.
Before considering the specifics of those submissions, it is helpful to recall the observations by Allsop CJ on this topic in Minister for Immigration and Border Protection v Stretton[2016] FCAFC 11; 237 FCR 1:
[8] The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: see Li at [30], [66] and [105].
…
[11] The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
[12] Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.
[13] The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power.
As the Chief Justice observed in Stretton in [8], the role of this Court in conducting judicial review of the Minister’s decision is supervisory and cannot involve substituting the Court’s view as to how a discretion should be exercised for that of an administrative decision-maker, including in particular substituting its view of what is reasonable for that of the Minister: see also Minister for Immigration and Citizenship v Li[2013] HCA 18; 249 CLR 332 at [66]; Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 at [59]. The issue therefore is whether the arguments advanced in support of this ground of appeal go beyond a challenge to the merits of the evaluative exercise carried out by the Minister, so as to substantiate a finding of legal unreasonableness.
While the relationship between the reasoning process as to the character test, and the conclusion reached as to the ultimate refusal to grant the visa, should not be rigidly set (Stretton, above, at [13]), the two were addressed separately by the appellant, the second effectively as an alternative in the event that the challenge to the first did not succeed. It is therefore convenient to address them separately, while acknowledging their interplay and overlap.
(1) The reasoning process on the character test
As to the challenge to the Minister’s reasoning process on the character test, the appellant submits that there was no logical basis for the Minister to infer, based on the threats made by him while delusional due to his bipolar disorder, that he posed “more than a remote chance” of carrying out those threats. This was in the context where there were no charges against him in relation to the conduct and it was not apparently doubted that he was not considered a security threat by ASIO or police. The only evident risk, according to the appellant, was that his mental condition would again deteriorate and he would make further threats, not that he would carry them out. It is that additional step of the Minister finding that there was a risk that the threats made might be carried out in Australia that is characterised by the appellant as being legally unreasonable.
An important aspect of the argument advanced both before the primary judge and on appeal concerned the finding by the Minister that the appellant had made two separate threats to blow himself up. The first threat was made at the time of the altercation on 12 January 2014, which the appellant said he would carry out in Syria, being a reaction to being told that his mother had been killed. The second threat was recorded as having been made on 20 April 2015 during a telephone call by the appellant to the Department’s Global Feedback Unit (known as the GFU).
As to the first threat, the primary judge reasoned at [47], correctly in my view, that it is “perfectly logical to reason that there is a risk that a person who is willing to blow themselves up might carry out such an act in a place different from that which they had specifically identified in the threat”.
As to the second threat, the appellant unsuccessfully sought to persuade the Minister that he was only referring to the prior threat made on 12 January 2014, not making a fresh threat to blow himself up. The Minister’s finding that this was a new threat was not required to be established to any curial standard. It could be established even by interpreting the arguably unclear or imprecise record of the Department in an unlikely way, provided that interpretation was available. The primary judge reasoned at [48], again correctly in my view, that this could reasonably be understood as a new threat by the appellant to blow himself up in Australia.
Those findings about the threats made by the appellant to blow himself up were important to the Minister’s risk assessment, including as to seriousness. Reasonable minds can differ as to how that risk should have been assessed, both in terms of the likelihood of the threat being carried out, and the seriousness of the consequences for the Australian community if it were to be carried out. Even the most emphatic disagreement with the reasoning in relation to that conclusion, identifying holes in the reasoning and shortcomings in the evidence or other material upon which the reasoning is based, does not necessarily or even readily render it legally unreasonable.
The Minister’s reasoning and conclusion in relation to the appellant not satisfying him that he passed the character test may be seen to squarely meet the requirement in s 501(6)(d)(v) of a finding of a certain kind of risk. The Minister’s evaluative finding was that there was a low likelihood, found to be more than minimal or remote, of the threatened activity in fact taking place in Australia. The Minister found that the possibility and thus risk of this taking place could not be excluded, and if it did occur could result in significant harm to the Australian community.
That was a very pessimistic approach to take, and could be seen as overly cautious, but the language of s 501(6)(d)(v) is cast in terms that authorised the Minister to be highly protective of the Australian community when it came to granting or refusing a visa when character is in issue. The problem with the appellant’s argument as to the reasoning process, apart from apparently departing from the concession recorded in the primary judge’s reasons at [98] without first obtaining leave to do so, is that it does not engage with the substance of the Minister’s reasons, as analysed by his Honour.
Taking the appellant’s threats to blow himself up seriously, the Minister was entitled to reason that once made, such a threat could possibly be carried out in Australia, even if that was not very likely. Some degree of risk that the appellant would carry out his threats, however low, was still rationally able to be found by the Minister, as the primary judge effectively concluded. I therefore consider that it was a conclusion that was open to the Minister as a matter of subjective assessment, even if the available information about the appellant’s prior conduct did not have to be read and understood in that way. That a different conclusion could have been reached by assessing the material in the way that the appellant contends should have been done amounts to no more than inviting impermissible merits view. That is because it focuses on the weight to be given to the evidence, not its legal capacity to support the conclusion reached. It was not legally unreasonable for the Minister to find a low possibility and thus risk that threats of this kind might be carried out. In substance, this argument, if accepted, would have the effect creating a threshold higher than provided for by the legislature of “a risk”.
I am therefore not satisfied that the necessary threshold of legal unreasonableness has been surmounted in relation to the reasoning of the Minister in finding that the low risk existed, nor in the assessment of the material relied upon to reach that conclusion, any more than it ultimately was at the appeal stage in Stretton.
(2) The outcome in refusing the grant of the visa
As to outcome, being the ultimate exercise of the discretion to refuse the grant of the visa sought, the substance of the appellant’s argument is one of asserted disproportionality between the finding of a low level of risk to the Australian community on all the evidence, and the ultimate conclusion reached at [79] of the Minister’s reasons, reproduced again for convenience:
I found the above considerations in favour of refusal outweighed the countervailing considerations in [the appellant’s] case, including the potential harm for [the appellant] if he is returned to Syria, Australia’s international non-refoulement obligations, and his mental health concerns.
Establishing legal unreasonableness in relation to an outcome may be more difficult than for a process of reasoning. The appellant was required to demonstrate that the Minister’s ultimate decision to refuse to grant him a visa was not within the range of possible lawful outcomes: Stretton at [11], reproduced at [329] above. That is, the outcome itself had to be an unlawful exercise of the power.
The appellant submits that the Minister’s finding of, at most, a low likelihood of the threatened conduct occurring, produced the disproportionate outcome of the protection visa being refused. The outcome is said to be disproportionate due to the necessarily greater weight given to the need to protect the Australian community in light of the “nature and seriousness of the claims and threats” made when due regard is had to the Minister’s findings or awareness that:
(1)the conduct giving rise to the risk was caused by mental illness and he has no recorded criminal history;
(2)he has never perpetrated any harm or violence against any person, apparently accepting submissions that he had never been charged with any offence and was cleared by police and ASIO;
(3)he had already spent five years in detention;
(4)the Minister’s Department had found he had a well-founded fear of persecution if he was returned to Syria including a threat to or loss of liberty or life, significant physical harassment and ill treatment, arrest and imprisonment, torture and enforced disappearance; and
(5)notwithstanding Australia’s non-refoulement obligations he was be liable to deportation on refusal of his protection visa application.
This aspect of the challenge is confined to the question of whether it was legally unreasonable for the Minister to balance the identified low risk (and potentially dire consequences if realised) against the other factors, including the identified individual and cumulative detriments, and conclude that the former should dominate, leading to the adverse exercise of the discretion.
The appellant submits that, in the circumstances listed above, the exercise of the discretion to refuse the visa for the reasons given was so unjust, arbitrary or disproportionate as to be beyond power, relying on Stretton. As the primary judge noted, Stretton makes it clear that although “disproportionality” may be a pathway for finding legal unreasonableness, it cannot be used to conduct impermissible merits review: see in particular Allsop CJ at [21] and Griffiths J at [57]-[58].
Once the Minister had made the risk assessment leading to the conclusion that the appellant failed the character test, it was for the Minister to assess and weigh the competing considerations as to the exercise of the discretion to nonetheless grant the visa sought. It was for the Minister to decide whether or not the risk and its potential consequences, if realised, did or did not outweigh the appellant’s compelling circumstances and the detriments he may face, including in particular those identified by the appellant on judicial review and in this appeal.
Each of the factors relied upon by the appellant before the primary judge, and on appeal, summarised above, are doubtless matters that could have resulted in a different conclusion being reached in the exercise of the discretion. The competing considerations could, on the merits, have been weighed and assessed differently, giving dominant weight to the factors favouring the grant of the visa, instead of it being refused. However that evaluative exercise was for the Minister, and not for the primary judge, as his Honour acknowledged. Neither individually, nor cumulatively, did the features the appellant relied upon compel a finding that the result arrived at was legally unreasonable. However harsh the conclusion reached by the Minister, it was, in these circumstances, within his lawful authority.
If an appeal on the merits had been permitted, that might well have produced a different outcome. To find, as the appellant asserts, and in the way this has been argued, that this conclusion was so unjust, arbitrary or disproportionate as to be beyond power by reason of legal unreasonableness, called for the primary judge, and for this Court in conducting an appeal by way of rehearing, to evaluate the competing considerations and decide which should prevail. For the primary judge, and for this Court, to focus on the weight that should have been given to the different features was nothing more than impermissible merits review.
It follows that the appellant’s assertion that the conclusion reached was so unjust, arbitrary or disproportionate as to be legally unreasonable does not rise higher than emphatic (and understandable) disagreement, emphasising the significance of his circumstances, past, present and future. The appellant has not been able to rise above merits review to successfully argue not just that a different conclusion could have been reached on all the material, but that in the lawful exercise of power, the conclusion reached was not available. It does not establish any error in the primary judge’s ultimate conclusion at [100], reproduced at [322] above, that the high threshold of legal unreasonableness had not been demonstrated.
I am therefore unable to accept that, in effect, the Minister’s decision could only lawfully be made in favour of the grant of the visa to the appellant. I am therefore unable to agree that any of these three conceptually similar pathways relied upon – unjust, arbitrary or disproportionate – have been shown to infect the Minister’s decision to refuse to grant the visa. I do not accept that legal unreasonableness in the conclusion reached as to the exercise of the discretion – that is to say, as to the outcome reached – has been established, such that the primary judge erred.
(3) Conclusion on ground 4
No error on the part of the primary judge has been established, such that this ground of appeal must also fail.
Conclusion
As each ground of appeal must fail, the Minister’s notice of contention concerning the non‑disclosable information does not arise for consideration.
The appeal should be dismissed with costs.
354 I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.
Associate:
Dated: 28 May 2020
63
6
6