EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)
[2021] FCA 1536
•10 December 2021
FEDERAL COURT OF AUSTRALIA
EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536
File number(s): VID 284 of 2021 Judgment of: PERRY J Date of judgment: 10 December 2021 Catchwords: MIGRATION – application for judicial review of decision of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs – where Minister refused to grant applicant protection visa on character grounds under s 501(1) of Migration Act 1958 (Cth) – where applicant had committed offences as a child for which no convictions were recorded – whether Minister’s finding that the prospect of ministerial intervention to exercise the Minister’s personal, non-compellable powers in the future to grant a visa or make the applicant subject to a residence determination was not “unrealistic” was illogical or irrational – where Minister found that any future reoffending by the applicant could have “serious consequences” for community and “great harm” could result – where Minister found that “any level of risk is unacceptable” – jurisdictional error established
MIGRATION – where probable consequence of refusal of visa application would be indefinite detention – where prolonged and indefinite detention was likely to exacerbate the applicant’s existing mental health issues – whether substantial and clearly articulated claim made that the psychological harm from which the applicant would be likely to suffer as a result of indefinite detention would reach the level of cruel, inhuman or degrading treatment contrary to Art 7 of the International Covenant on Civil and Political Rights – where Minister failed to meaningfully engage with claim – whether failure to meaningfully engage with claim was material – jurisdictional error established
MIGRATION – whether Minister lacked power to refuse to grant visa because all valid criteria had earlier been met – whether Minister or his delegate under duty to grant the visa – whether public interest criterion 4001 of Sch 4 to the Migration Regulations 1994 (Cth) invalid by reason of inconsistency with Migration Act 1958 (Cth) – KDSP v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2021] HCA 24; (2021) 95 ALJR 666 followed – challenge to validity of public interest criterion 4001 dismissed
MIGRATION – whether Minister misconstrued s 501(6)(d)(i) of Migration Act 1958 (Cth) in taking into account “the nature of the harm … should [the applicant] engage in … other serious conduct”– whether no probative evidence for Minister’s finding that applicant had received “ongoing engagement with support services” or that applicant presented increased risk of offending once removed from immigration detention – whether Minister erred in failing to consider the applicant’s submissions that “community expectations” should take account of the applicant’s circumstances and in applying the deemed community expectations in Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA – whether inference should be drawn that Minister did not engage in any active intellectual process in respect of relevant material given its volume and the length of time available for his consideration – whether inference should be drawn that decision made by delegate and not Minister personally – whether the Minister’s decision to make the refusal decision personally thereby denying the applicant merits review was legally unreasonable or the product of the Minister’s failure to consider that legal consequence
PRACTICE AND PROCEDURE – interlocutory application for leave to re-open and to file second further amended originating application refused
Legislation: Federal Court Rules 2011 (Cth) r 40.02(b)
Judiciary Act1903 (Cth) s 39B
Legislation Act 2003 (Cth) s 13(1)(b)
Migration Act 1958 (Cth) ss 31(3), 36, 47(2), 65, 195A, 197AB, 198, 499, 501, 504, Pt 2, Div 3 Subdiv AA
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Regulations 1994 (Cth) Sch 2, cll 866.225(a), 866.226, 866.227, 866.231, 866.232, Sch 4 Pt 1
Children (Criminal Proceedings) Act 1987 (NSW) ss 5, 14
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976, entered into force for Australia 13 November 1980) Arts 7 and 9
Cases cited: Aerocare Flight Support Pty Ltd v Transport Workers’ Union of Australia [2018] FCAFC 74; (2018) 261 FCR 175
ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30
ARK16 v Minister for Immigration and Border Protection [2018] FCA 825
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595
Australian Postal Corporation v D’Rozario [2014] FCAFC 89; (2014) 222 FCR 303
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83
AXT19 v Minister for Home Affairs [2020] FCAFC 32
BAL19 v Minister for Home Affairs [2019] FCA 2189
BHL19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 929; (2019) 166 ALD 284
Blatch v Archer (1774) 98 ER 969
BMW16 v Minister for Immigration and Border Protection [2017] FCA 1036
Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651
Carrascalaov Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352
Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; (2020) 276 FCR 75
Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335
Church of Scientology Inc v Woodward (1982) 154 CLR 25
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450
DQM18 v Minister for Home Affairs [2020] FCAFC 110; (2020) 278 FCR 529
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088
EPU19 v Minister for Home Affairs [2020] FCA 541
EVK18 v Minister for Home Affairs [2020] FCAFC 49; (2020) 274 FCR 598
Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Federal Commissioner of Taxation v Primary Health Care Ltd [2017] FCAFC 131; (2017) 252 FCR 496
Fualau v Minister for Home Affairs [2020] FCAFC 11
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Inspector General in Bankruptcy v Bradshaw [2006] FCA 22
Jones v Dunkel (1959) 101 CLR 298
Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108; (2020) 279 FCR 1
KDSP v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2021] HCA 24; (2021) 95 ALJR 666
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589
Minister for Immigration and Border Protection v MZZMX [2020] FCAFC 175; (2020) 280 FCR 1
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A [2020] FCAFC 121; (2020) 279 FCR 475
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2018) 95 ALJR 441
Navoto v Minister for Home Affairs [2019] FCAFC 135
Nguyen v Minister for Home Affairs [2019] FCAFC 128; (2019) 270 FCR 555
O’Donnell v Reichard [1975] VR 916
Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173
Project Blue SkyInc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
QYFM v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs [2021] FCAFC 166
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165
Ruddock v Vadarlis (2001) 110 FCR 491
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121
Springs v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 197; (2021) 389 ALR 431
Swift v SAS Trustee Corporation [2010] NSWCA 182
SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824
SZNKV v Minister for Immigration and Citizenship [2010] FCA 56; (2010) 118 ALD 232
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1
Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15
Tickner v Chapman (1995) 57 FCR 451
Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471
Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 144; (2020) 278 FCR 386
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 255 Date of last submission/s: 20 September 2021 Date of hearing: 2 and 3 September 2021 Counsel for the Applicant: Mr M Guo with Mr J Murphy Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondent: Mr P Herzfeld SC with Mr A Solomon-Bridge Solicitor for the Respondent: Australian Government Solicitor ORDERS
VID 284 of 2021 BETWEEN: EPU19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
PERRY J
DATE OF ORDER:
10 DECEMBER 2021
THE COURT ORDERS THAT:
1.The application for judicial review is granted.
2.A writ of certiorari issue quashing the decision of the Minister dated 23 July 2021.
3.On or before 4:00pm on Friday, 17 December 2021, the parties are to provide short minutes of order, agreed if possible, by email to the Associate to Justice Perry setting out a timetable for the provision of written submissions with respect to:
(a)any other orders required to give effect to these reasons; and/or
(b)costs.
4.Final orders will be determined on the papers without a further oral hearing.
THE COURT NOTES THAT:
5.The parties are to endeavour in the first instance to agree any other orders required to give effect to these reasons, and as to costs, fixed if possible in a lump sum or sums pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRY J:
1 INTRODUCTION
[1]
2 EVIDENCE
[8]
3 WRITTEN SUBMISSIONS BY THE PARTIES
[13]
4 FACTUAL BACKGROUND
[14]
4.1 The 2018 decision by the Tribunal
[14]
4.2 The Minister’s 2019 refusal decision and judicial review of that decision
[16]
4.3 The application for peremptory mandamus directing the Minister to grant the protection visa forthwith
[18]
4.4 The decision by the Tribunal that Mr EPU satisfied the criterion in s 36(1C)(b)
[21]
4.5 Subsequent steps taken by the Department
[23]
4.6 The Notice of Intention to Consider Refusal of Mr EPU’s visa under s 501(1) of the Act dated 18 June 2021
[37]
4.7 The Minister’s 2021 refusal decision
[40]
4.7.1 Minister’s reasons for finding that Mr EPU did not pass the character test in s 501(6)(d)(i)
[42]
4.7.1.1 “Risk of engaging in criminal conduct in Australia”
[44]
4.7.1.2 “Factors contributing to [the applicant’s] past conduct”
[47]
4.7.1.3 “Remorse and rehabilitation”
[48]
4.7.1.4 “Recent adverse conduct – Conduct in the [MITA]”
[55]
4.7.1.5 “Conclusion on risk to community”
[59]
4.7.2 Minister’s reasons for the exercise of the discretion to refuse to grant Mr EPU a visa ([82]–[159])
[63]
4.7.2.1 Primary consideration: Protection of the Australian community from criminal or other serious conduct
[64]
4.7.2.2 Primary consideration: Best interests of minor children
[65]
4.7.2.3 Primary consideration: Expectations of the Australian community
[66]
4.7.2.4 Other considerations: International non-refoulement obligations
[67]
4.7.2.5 Other consideration: extent of impediments if removed to Country X and links to the Australian community
[74]
4.7.3 Additional matters considered: legal consequences of the refusal decision
[76]
4.7.4 Additional matters considered: effects of prolonged detention
[77]
4.7.5 The Minister’s conclusion
[79]
4.8 The present application for judicial review
[80]
5 CONSIDERATION OF THE GROUNDS FOR JUDICIAL REVIEW
[85]
5.1 Preliminary matters
[85]
5.2 Relevant statutory provisions
[87]
5.3 Did the Minister breach a duty under s 65 of the Act to grant the protection visa (Grounds 1 and 2)?
[96]
5.3.1 The applicant’s submissions
[96]
5.3.2 Grounds 1 and 2 must be dismissed
[99]
5.4 Is the finding that the prospects of ministerial intervention was not “unrealistic” illogical or irrational (Ground 7)?
[124]
5.4.1 Relevant principles
[124]
5.4.2 Consideration
[127]
5.5 Did the Minister fail to consider the consequences for the applicant of a refusal to grant the visa (Ground 6)?
[138]
5.5.1 Relevant principles
[138]
5.5.2 Consideration
[151]
5.6 Did the Minister misconstrue the character test in s 501(6)(d)(i) in having regard to extraneous matters (Ground 3)?
[173]
5.7 Was the Minister’s finding that the risk of Mr EPU committing criminal offences would increase if he is removed from immigration detention open on the evidence (Ground 4)?
[189]
5.8 Did the Minister fail to consider submissions as to community expectations (Ground 5)?
[197]
5.8.1 Direction 90
[197]
5.8.2 The parties’ submissions
[202]
5.8.3 The applicant’s July 2021 letter to VACCU
[204]
5.8.4 Did the Minister engage in an active intellectual process with respect to the primary and alternative submissions?
[208]
5.9 Was the s 501 refusal decision the product of an active intellectual process by the Minister or not a decision by the Minister personally (Ground 8)?
[218]
5.9.1 The issues raised by Ground 8
[218]
5.9.2 Consideration
[225]
5.10 Did the Minister err in failing to consider that merits review would not be available if he made the s 501 decision personally/was this legally unreasonable (Ground 9)?
[242]
6 PROPOSED ADDITIONAL GROUND OF REVIEW (GROUND 10)
[245]
6.1 Proposed Ground 10
[245]
6.2 Should leave to re-open be granted?
[248]
7 CONCLUSION
[255]
1. INTRODUCTION
The applicant seeks judicial review of a decision made on 23 July 2021 by the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister). In that decision, the Minister refused the applicant’s application for a protection visa on character grounds under s 501(1) of the Migration Act 1958 (Cth) (the Act) (the 2021 refusal decision).
Section 501(1) provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that she or he passes the character test as defined in s 501(6). This power may be exercised by a delegate of the Minister or, as occurred in this case, by the Minister personally. Where the power is exercised personally by the Minister, the decision is not subject to merits review by the Administrative Appeals Tribunal (the Tribunal) (s 500(1)(b)).
The Court’s role in adjudicating on the application for judicial review is limited to determining whether the Minister’s decision was made within lawful bounds and not to revisit the merits of that decision. The question of whether or not the Court agrees with the Minister’s decision is, therefore, irrelevant. As, for example, Brennan J (as his Honour then was) explained in Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 70, “[j]udicial review is neither more nor less than the enforcement of the rule of law over executive action.” In this regard, it was not in issue that the burden lies upon the applicant to demonstrate that the Minister’s decision exceeded lawful bounds and was tainted by jurisdictional error: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [24] (French CJ, Bell, Keane and Gordon JJ).
The grounds on which the applicant sought judicial review in the further amended originating application filed on 9 August 2021 (the further amended originating application) may be summarised as follows.
(1)The Minister lacked power to refuse to grant the visa under s 501 of the Act because all of the valid criteria for the grant of the visa had earlier been met and the Minister or his delegate was then under a duty to grant the visa (Grounds 1 and 2).
(2)The Minister proceeded on a misconstruction of s 501(6)(d)(i) of the Act insofar as he took into account “the nature of the harm … should [the applicant] engage in … other serious conduct” whereas the subsection permitted consideration only of the risk that the applicant “would engage in criminal conduct” (Ground 3).
(3)There was “no probative evidence” for the finding that the applicant had received “ongoing engagement with support services” or that he presented an increased risk of offending “once he is removed from this environment”, ie, immigration detention (Ground 4).
(4)The Minister erred in ignoring the applicant’s submissions about “‘community expectations’ apart from how that term is considered in Direction 90, and [such submissions were] relevant to the Minister’s unconstrained discretion whether to exercise the power in s 501(1)” and in failing to consider how those submissions should factor into what weight is to be afforded to “community expectations” (Ground 5).
(5)The Minister failed to consider the legal consequence that refusal of the applicant’s visa application would likely lead to indefinite and therefore arbitrary detention, and/or cruel, inhuman or degrading treatment, in breach of Articles 9 and/or 7 respectively of the International Covenant on Civil and Political Rights (ICCPR) (Ground 6).
(6)The Minister’s reasoning that he “[did] not consider the prospects of ministerial intervention under s195A or 197AB of the Act to be unrealistic” was unreasonable, illogical or irrational (Ground 7).
(7)an inference should be drawn from the evidence that the Minister did not engage in any active intellectual process in respect of the material purportedly considered by him, “or only purportedly made a decision when it was instead actually made by a delegate and not him personally” (Ground 8).
(8)The making of the decision by the Minister personally so as to deny the applicant merits review was legally unreasonable or alternatively the product of a failure by the Minister to consider that the legal consequence of a decision made by him personally would deprive the applicant of the right to merits review (Ground 9).
In addition, by an interlocutory application filed on 21 September 2021 after the hearing, the applicant sought leave to re-open his case and to file and serve a second further amended originating application adding a further ground of review (proposed Ground 10). That application was supported by the affidavit of Ms Chelsea Clark, solicitor, affirmed on 9 September 2021 (the Clark affidavit), to which the second further amended originating application (the second further amended originating application) was annexed. Proposed Ground 10 alleges that the Minister failed to give genuine consideration to the evidence and submissions advanced by the applicant concerning his involvement in “incidents” in immigration detention and the extent to which he posed a risk, if any, to the Australian community based upon his past use of alcohol or other intoxicants.
For the reasons set out below, Grounds 7 and 6 of the application are established. In short, the Minister’s finding that the prospects of ministerial intervention under the Minister’s personal, non-compellable powers were not unrealistic was illogical (Ground 7). Further and in any event, the Minister failed to consider a substantial and clearly articulated submission made on behalf of Mr EPU that the psychological harm from which he would be likely to suffer as a result of his indefinite detention (which would be a probable consequence if the visa application were refused) would constitute cruel, inhuman or degrading treatment contrary to Art 7 of the ICCPR (Ground 6). In each case, the errors were jurisdictional in nature and therefore the Minister’s decision under s 501(1) was invalid.
Finally, I note that the applicant is identified by the pseudonym “EPU19” in this proceeding, given his claims for protection against harm if he is returned to his country of nationality. It follows that in referring to him as “Mr EPU” or “the applicant” in these reasons, I mean no disrespect. Furthermore, given his claims for protection, certain details which might otherwise identify him have been omitted, including his country of nationality which I will simply refer to in these reasons as “Country X”.
2. EVIDENCE
In support of the application for judicial review, Mr EPU relied upon:
(1)the affidavits of Mr Gregory Hanson, solicitor, affirmed 9 August 2021 and 27 August 2021 respectively;
(2)the statement of agreed facts dated 23 July 2021 and filed on 25 July 2021 (Exhibit A-1);
(3)the applicant’s tender bundle filed 30 August 2021 (A-TB) and supplementary tender bundle filed on 30 August 2021 (A-STB) (Exhibits A-2 and A-3 respectively);
(4)four Gazette extracts from the Parliament of Australia website regarding the Hon Alex Hawke MP dated 19 July 2016, 20 December 2017, 28 August 2018 and 22 December 2020 (Exhibit A-4);
(5)the respondent’s list of document in response to the order for discovery and affidavit of Josefina Soledad Wellings Booth filed 27 August 2021 (Exhibit A-5);
(6)the first answer from the Minister to interrogatories administered by the applicant dated 27 August 2021 (Exhibit A-6); and
(7)the document containing a table for the financial year 2015-2016 to 30 April 2021 setting out the number and kind of visas granted under s 195A of the Act where the visa holder failed s 501 and where non-refoulement obligations were owed (Exhibit A-7).
I note that with respect to the answers to interrogatories, the applicant contended that no weight ought to be given to answers 2 and 3, and tendered the whole of the answers only on objection.
The respondent relied upon his tender bundle filed 31 August 2021 (R-TB) (Exhibit R-1) and the two affidavits of Nigel Lee Muir affirmed on 16 July 2021 and 31 August 2021 (the first and second Muir affidavits respectively). I note that in his evidence, Mr Muir corrected the date on which his first affidavit was affirmed from 2020 to 2021 and corrected the place on which it was affirmed to Melbourne and not Canberra as recorded on the affidavit. Mr Muir has held the position of Director of the National Character Consideration Centre (NCCC) in the Department of Home Affairs (the Department) since 2 May 2017. Over the course of his 25 years as a public servant, he has held various positions in a number of Commonwealth departments and agencies. He joined the predecessor to the Department in 2001 and has performed duties as an Executive Level 2 Australian Public Service employee since 2006.
Mr Muir was cross-examined and gave helpful and cogent evidence, clearly identifying those areas where he had knowledge and the basis of his knowledge, and those areas where he did not. The applicant submitted that there were aspects of Mr Muir’s evidence which were “unsatisfactory by reason of overstatement” and which ought to be taken into account in determining the weight to be given to his evidence on contested matters, referring in particular to the following:
(a)as to assessments being ‘indicative’ because the person conducting the assessment did not hold the required delegation;
(b)as to existence of [Integrated Client Services Environment] records in this matter saying that a criterion was only ‘indicatively’ met;
(c)as to an outcome of a ‘[visa application primary assessment] for views’ being referral to a Minister;
(d)as to non-inclusion of completed [visa application primary assessment] in affidavit.
However, contrary to the applicant’s submissions, I accept Mr Muir’s evidence as to the indicative character of assessments of particular criteria in the course of the process leading to a decision under s 65 of the Act as to whether or not to grant a visa. As I later explain, his evidence in this regard is also consistent with the nature of a decision under s 65 which requires the Minister personally or her or his delegate to determine whether or not she or he is satisfied that the criteria for the grant of the visa are met at the time that the s 65 decision is made. Nor do I draw any adverse inference from the failure to attach a completed visa application primary assessment (VAPA) to his affidavit.
3. WRITTEN SUBMISSIONS BY THE PARTIES
Due to the fact that the Minister advised the applicant of his s 501(1) decision made on 23 July 2021 only on the eve of the trial when it was first listed on 26 July 2021, the evolving nature of the applicant’s case as a consequence of this and other matters, and the fact that there were unexpected delays in obtaining the transcript of the first day of the trial on 2 September 2021, there were unfortunately multiple sets of written submissions filed by the parties, including after the hearing (with leave). The various sets of written submissions were as follows:
(1)Applicant’s Outline of Written Submissions filed on 16 April 2021 (AS (16 April 2021));
(2)Applicant’s Further Outline of Written Submissions filed on 6 July 2021 (AS (6 July 2021));
(3)Respondent’s Written Submissions filed on 21 July 2021 (RS (21 July 2021));
(4)Applicant’s Outline of Written Submissions in support of Further Amended Application, originally filed on 24 August 2021 and re-filed in a marked-up form on 30 August 2021 (AS (30 Aug 2021));
(5)Respondent’s Written Submissions filed on 31 August 2021 (RS (31 Aug 2021));
(6)Applicant’s Written Submissions in Reply filed on 1 September 2021 (AR (1 Sept 2021));
(7)Applicant’s Submissions on Application for Leave to Re-Open and Amend filed on 9 September 2021 (AS (9 Sept 2021));
(8)Respondent’s Post Hearing Submissions filed on 17 September 2021 pursuant to leave granted on 6 September 2021 (RS (17 Sept 2021));
(9)Applicant’s Reply Submissions on Application for Leave to Re-Open and Amend filed on 20 September 2021 (AR (20 Sept 2021)); and
(10)Table entitled “Applicant’s contended conclusions from evidence of Mr Muir and Respondent’s response” filed on 17 September 2021 pursuant to leave (Parties’ Comparative Table of Proposed Findings).
4. FACTUAL BACKGROUND
4.1 The 2018 decision by the Tribunal
Mr EPU is a young man who has been in immigration detention for several years since the age of 15. He applied for a Protection (Class XA) visa on 3 October 2017. His application for a protection visa has had a complex history. For reasons which will become apparent, it is necessary to set out the chronology of events leading to the Minister’s 2021 refusal decision with some care.
Mr EPU’s visa application was initially refused by the delegate on the ground that the delegate was not satisfied that Mr EPU was a refugee or that there was a real risk that Mr EPU would suffer significant harm if returned to Country X. However, in 2018 the Tribunal found that Mr EPU was a person in respect of whom Australia owes protection obligations under s 36(2)(a) of the Act (the 2018 Tribunal decision).
4.2 The Minister’s 2019 refusal decision and judicial review of that decision
On 15 October 2019, the then Minister for Home Affairs personally refused the visa under s 501(1) of the Act on the ground that Mr EPU did not pass the character test and gave reasons (the 2019 refusal decision). The Minister’s reasons for his 2019 decision are reproduced at Annexure NLM-1 to the first Muir affidavit. Mr EPU has no recorded convictions. However, the 2019 refusal decision was made in light of certain offences having been found proven by the Children’s Court of New South Wales (the Children’s Court) which were committed while Mr EPU was 14 to 15 years of age. Those offences (which did not proceed to conviction pursuant to the operation of s 14 of the Children (Criminal Proceedings) Act 1987 (NSW)) were committed over a four-month period and included robbery and assault for which he was sentenced to a control order for 14 months as an aggregate sentence, with a seven-month non-parole period (2019 refusal decision at [7] and [14]). (In this regard, I note that the respondent’s written submissions dated 21 July 2021 wrongly state at [7] that Mr EPU had been convicted of offences by the Children’s Court.)
Mr EPU sought judicial review of the 2019 refusal decision in earlier proceedings. On 27 February 2020, that decision was quashed by consent on the basis that the then Minister for Home Affairs had failed to respond to a substantial, clearly articulated argument upon which Mr EPU had relied (first Muir affidavit at [12]). An order in the nature of mandamus was made requiring the Minister for Home Affairs to determine the matter according to law.
4.3 The application for peremptory mandamus directing the Minister to grant the protection visa forthwith
On 30 March 2020 and having regard to the then state of legal authority, Mr EPU filed an interlocutory application seeking peremptory mandamus directing the Minister for Home Affairs to grant the protection visa forthwith (first Muir affidavit at [13]). That application was heard by Steward J on 17 April 2020. One of the matters in issue between the parties on that application was whether the Minister considered that Mr EPU satisfied the visa criterion in s 36(1C) of the Act or whether that criterion remained unsatisfied. Section 36(1C) relevantly provides that a criterion for a protection visa is that the applicant is not a person whom the Minister considers on reasonable grounds is a danger to the Australian community. Justice Steward delivered judgment on 17 April 2020 and published his reasons on 24 April 2020 in EPU19 v Minister for Home Affairs [2020] FCA 541 (EPU19 (Steward J)). His Honour found that, considered in combination, internal departmental documents supported the inference that a final view had been made concerning the application of s 36(1C) to Mr EPU before the Minister made his decision under s 501 on 15 October 2019 (at [24]).
Further, as at the date of the hearing of the application before Steward J, the decision of Rares J in BAL19 v Minister for Home Affairs [2019] FCA 2189 (BAL19) had not yet been overturned. In BAL19, Rares J held that the Minister was not entitled to refuse the grant of a protection visa under s 501(1) of the Act. Given therefore the then state of the law, once Steward J held that the Minister was required to consider afresh the criteria for the grant of a protection visa under the orders made in February 2020 save for the criterion in s 36(2)(a) of the Act that the applicant was a person to whom Australia owed protection obligations as a refugee, the relevant question was what timeframe should be afforded for compliance (EPU19 (Steward J) at [53]–[54]). Reconsideration of the exercise of the power under s 501(1) was not possible on the law as stated in BAL19. Accordingly and in the circumstances, Steward J made orders requiring the Minister to determine whether or not to grant a protection visa to Mr EPU on or before 8 May 2020.
Subsequently, on 23 June 2020, the Full Court in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108; (2020) 279 FCR 1 (KDSP (FCAFC)) overruled the decision in BAL19 and held that the power under s 501(1) could be exercised to refuse a protection visa. The same conclusion was reached by a differently constituted Full Court on the following day in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A [2020] FCAFC 121; (2020) 279 FCR 475.
4.4 The decision by the Tribunal that Mr EPU satisfied the criterion in s 36(1C)(b)
In the interim, on 7 May 2020 the Minister’s delegate decided to refuse to grant the visa on the ground that Mr EPU did not meet s 36(1C)(b) of the Act. Mr EPU in turn applied for review of that decision by the Tribunal.
On 11 March 2021, the Tribunal remitted the decision under review to the Minister with a direction that Mr EPU satisfied the criterion in s 36(1C)(b) of the Act, noting the Minister’s concession that Mr EPU was not a danger to the Australian community for the purposes of that provision (first Muir affidavit at [21] and Annexure NLM-4). The Tribunal also found that Mr EPU “demonstrated maturity, genuine remorse, and insight into his past behaviour” as a juvenile and that he had “a low risk of reoffending” (Tribunal’s reasons at [18] and [25]).
4.5 Subsequent steps taken by the Department
Following that decision, on 17 March 2021 an officer of the Department determined that an Australian criminal history check should be performed with respect to Mr EPU before progressing his application. On 22 March 2021, the Department requested the criminal history check through CRIMTRAC which it received on 1 April 2021. These matters were recorded in the Department’s document management systems, the Integrated Client Services Environment (ICSE) (first Muir affidavit at [22] and Annexure NLM-5). On the same day, the Department sought a written statement from Mr EPU concerning the circumstances of the offending listed in the criminal history check, with submissions in response being made on behalf of Mr EPU by his migration agent on 6 April 2021 (first Muir affidavit at [23]–[25]).
On 8 April 2021, Mr EPU’s application for a protection visa was referred to the Visa Applicant Character Consideration Unit (VACCU) for consideration (first Muir affidavit at [26]). VACCU is a section within the Character and Cancellation Branch (CACB) which is, in turn, within the Department. The CACB is responsible for processing visa cancellation and refusal decisions for non-citizens who are of character or security concern, are non-compliant with visa conditions, or have committed migration fraud. This includes cancellation and refusal decisions on character grounds and cancellation decisions under the general non-character grounds (such as cancellations under ss 109, 116 and 128 of the Act). Referrals to VACCU are regulated by departmental policy. Mr Muir explained that one of the reasons for the referral is that not all officers who hold a delegation to make a decision to grant or refuse to grant a visa under s 65(1) of the Act also hold a delegation to make decisions under s 501(1) of the Act (first Muir affidavit at [27]).
On 29 April 2021, an Assistant Director of the CACB wrote to a Senior Legal Officer in the Department stating that:
The case was referred from PV to VACCU on 8 April 2021. Prior to this time there was no consideration of s501.
Section 501 consideration cannot commence until a case is referred to VACCU. Prior to this time it was with the visa processing area.
Following the referral on 8 April 2021 the case has not been considered against s501.
A visa application primary assessment (VAPA) is being provided to the delegate today (29 April 2021) to ascertain her views on whether or not s501 should be exercised. Following this the Minister (Minister Andrews) will be briefed to determine if she would like to make a s501 decision or is happy for a delegate to make a decision.
(A-STB at p. 714.)
In line with this, on 29 April 2021, a VAPA was provided to an officer, “Dani”, who held a delegation to exercise power under s 501(1), in order to ascertain her views on whether the visa should be refused under that provision. While the applicant submitted that it was legally irrelevant, I note that Dani also held a permission from the Assistant Secretary to exercise that delegation (T, 2/09/21, 39.13-19; Parties’ Comparative Table of Proposed Findings at item 6).
The reason given in the VAPA for the “views sought” from Dani was “Client Brief” (A-STB at p. 736). More specifically, the email to Dani from the Manager, Program Management Capability Team, NCCC, explained that a VAPA was attached “for your views” and that “[y]our views will be included in a CB for Minister Andrews seeking direction on whether she wishes to personally consider this application under s501(1)” (first Muir affidavit, Annexure NLM-10). Thus, Mr Muir explained that Mr EPU’s case:
… was identified for escalation prior to Daniella [Dani] forming a view. And it was put to her with the intention of seeking a view to inform a – a client brief to the Minister’s office.
As he further explained, the reason why the case was identified for escalation before Dani was involved was because the Minister (then the Hon Peter Dutton) had been the previous decision-maker, “[s]o on that basis, a client brief was deemed necessary to give the – visibility to the Minister and the option of whether the Minister wanted to, again, personally decide the case.” (T, 2/09/21, 40.42-41.4; see also at T, 2/09/21, 42.18-35 (Mr Muir)). This course appears to be accommodated by the Department’s internal escalation protocols which identify categories of cases where the Department would seek views and then escalate them (T, 2/09/21, 44.39-45.2 (Mr Muir)). In this regard, the failure by the Minister to produce these protocols, despite the protocols being documented, is of no significance in circumstances where they fell outside the scope of discovery sought by the applicant and I therefore draw no adverse inference from the failure to produce them (cf the applicant’s submission in the Parties’ Comparative Table of Proposed Findings at p. 5). Nor do I consider that Mr Muir’s evidence on this issue is inconsistent with the Character Case Allocation Matrix at p. 741 of the A-STB. Even though the circumstances of Mr EPU’s case did not fall within a category expressly identified in the Matrix as one requiring a decision by the Minister (such as a case involving a crime against humanity or serious violent offences), I accept Mr Muir’s evidence that the escalation in this case was regarded as consistent with the Matrix because it fell within the category of “other cases identified as exceptional” by reason of the Minister having been the previous decision-maker (T, 2/09/21, 42.33-35). Furthermore, I do not accept that any adverse inference should be drawn from the failure to call Dani (cf the applicant’s submission in the Parties’ Comparative Table of Proposed Findings at p. 5). Mr Muir gave evidence of relevant departmental processes and policies, and the documentary evidence was completely clear that Dani was neither asked for, nor purported to make, a decision on whether to exercise the power in s 501 of the Act, as I later find.
It follows that the purpose of seeking Dani’s views was to give the Minister the option of deciding whether he should make the s 501 decision personally (T, 2/09/21, 40.38-40 (Mr Muir)) and not to ask Dani to make the decision on whether the power to refuse the visa under s 501 should be exercised. In this regard, Mr Muir explained that a s 501 delegate could form a view as to whether the case is one appropriately decided by the Minister or alternatively by a delegate, and in reaching a view may take into account, but is not bound by, the view of the case officer (T, 2/09/21, 41.34-45). However, in Mr EPU’s case, Dani was already aware that the case was being escalated to the Minister when she was asked to provide her views (T, 2/09/21, 42.1-3).
A client brief for the Minister, as in the present case, will generally give the Minister various options, including to refer any s 501 decision to a delegate or to request a full submission for the Minister’s personal consideration (second Muir affidavit at [7]). As to the purpose of a VAPA, Mr Muir explained that it:
… is to gauge the character delegate’s views as to whether or not they would be inclined to exercise or not to exercise the discretion in s 501(1) of the Act. The character delegate will consider the matter and form a view as to the most appropriate action for the case, which may include finalising administratively or referral to the Minister for consideration.
(First Muir affidavit at [28]; see also the second Muir affidavit at [5].)
In essence, a VAPA “for views” is a way of assisting the briefing of the Minister by giving an indication from a departmental officer holding a delegation to exercise power under s 501 on whether they would be inclined to exercise such a power on the material currently before them, should the case be referred back to the delegate for her or him to proceed to a decision (second Muir affidavit at [7]).
The departmental officer, Dani, who signed off on the VAPA as a delegate of the Minister administering the Act, gave her view that “[o]n the basis of the evidence currently before me I am minded to … Not Refuse”, that is, she was “minded” not to refuse Mr EPU a visa under s 501(1). This document was included in the Client Brief provided in due course to the Minister (T, 2/09/21, 46.36-39 (Mr Muir)).
In the ministerial submission dated 5 May 2021, the Assistant Secretary, CACB, advised that the Minister had two options:
(1)to personally consider refusal of Mr EPU’s visa under s 501(1) on the basis of the risk of further offending if Mr EPU were to remain in Australia, in which case a submission would be referred to the Minister for consideration; or
(2)to refer the case to the delegate to decide, with the submission “not[ing]” that as “the delegate is minded not to refuse, this would likely result in the grant of [Mr EPU’s] visa” (A-STB at pp. 638–9).
This Client Brief was sent to Minister Hawke’s Office on 7 May 2021 (R-TB at p. 1). The covering email from the Assistant Secretary also stated “PDMS Submission to follow”.
On 14 May 2021, Minister Hawke decided to consider the matter personally (A-STB at pp. 643 and 728).
Mr EPU’s application for a visa was returned to the Protection Visa area on 2 June 2021 for a consideration of protection obligations in accordance with s 36A of the Act. Mr Muir explained that this occurred because Mr EPU’s application was affected by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) (the CIOR Act). Following the assessment in accordance with s 36A, Mr EPU’s application was referred again to VACCU on 7 June 2021 so that an assessment under s 501(1) could be undertaken (first Muir affidavit at [29]).
4.6 The Notice of Intention to Consider Refusal of Mr EPU’s visa under s 501(1) of the Act dated 18 June 2021
On 18 June 2021, a Notice of Intention to Consider Refusal of Mr EPU’s visa under s 501(1) of the Act (NOICR) was sent to Mr EPU (first Muir affidavit at [30] and Annexure NLM-11). Among other things, the NOICR contained new information in the form of a file note concerning alleged incidents in immigration detention which had occurred since the Tribunal’s decision and was said to include “aggressive behaviour”. The letter explained that the decision-maker may take that information into account because “such behaviours may indicate a propensity to engage in harmful or threatening conduct against or toward others.” The letter further explained that Mr EPU may wish to make submissions in relation to the Primary and Other Considerations set out in Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90), given that a delegate must follow Direction 90 if making the decision and, if the Minister should make the decision personally, the direction, while not binding, “provides a broad indication of the types of issues that he or she may take into account.” This was subject to the caveat that “Direction No. 90 must now be read subject to the legislative amendments made by the CIOR Act. In particular, Direction No. 90 is no longer accurate to the extent that it suggests that an unlawful non-citizen is liable to be removed under s198 despite any non-refoulement obligations.” The NOICR requested that Mr EPU provide any responsive information or material to the Department within 14 days, although an extension of time could be requested. (I note that the NOICR wrongly suggested that a delegate may make the decision, notwithstanding that the Minister had already decided to make the decision personally.)
On 30 June 2021, Mr EPU’s representative sent an email to the Department requesting that a decision to refuse the visa not be made until 14 July 2021, indicating that a forensic psychiatric report in relation to Mr EPU was being sought and was expected to be obtained by 12 July 2021. On 3 July 2021, the Department wrote acceding to Mr EPU’s request, and the supplementary report was subsequently provided by Mr EPU on 14 July 2021. A further extension of time until 16 July 2021 was also sought by Mr EPU’s representative within which to provide detailed submissions, which was allowed by the Department.
As at 16 July 2021 when Mr Muir affirmed his first affidavit, he explained at [34] that:
After the [a]pplicant provides further information responding to the NOICR, or otherwise after the expiry of the time allowed to the [a]pplicant to provide that information, it is intended that a submission will be finalised by the Department and provided to the Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs in the week beginning Monday 19 July 2021, presenting the [a]pplicant’s visa application for the Minister’s decision, and presenting information relevant to that decision.
4.7 The Minister’s 2021 refusal decision
On 23 July 2021, the Minister made a decision under s 501(1) to refuse to grant the protection visa to Mr EPU and gave reasons for that refusal by adopting the lengthy draft statement of reasons prepared by the Department (A-STB at pp. 3–5 and 9ff respectively).
As the applicant challenged a number of aspects of the Minister’s reasons and his reasons need to be understood as a whole, it is necessary to summarise the decision in some detail.
4.7.1Minister’s reasons for finding that Mr EPU did not pass the character test in s 501(6)(d)(i)
The Minister commenced by addressing the character test, identifying s 501(6)(d)(i) of the Act as the relevant ground, namely, whether there is a risk that the applicant would “engage in criminal conduct in Australia” if allowed to remain (at [5]). The Minister stated that he took into account the applicant’s representative’s submission that the ground was not enlivened as there was no more than a minimal or remote chance that the applicant would engage in criminal conduct resulting in a conviction in the future, given that he had never been convicted of a criminal offence, he had been fully rehabilitated, and he would have access to considerable and ongoing supports once released from immigration detention (at [6]). However the Minister noted that the applicant accepted the findings by the Children’s Court and the “sentence imposed for his criminal offending” found proven, with the applicant having pleaded guilty (at [8]–[9]).
After considering the circumstances of the applicant’s offending as set out in the sentencing remarks of the Children’s Court and acknowledging that the applicant had not been convicted of any offences, the Minister considered that the applicant’s “previous behaviour, as outlined by the court shows a propensity to commit acts of a criminal nature” (at [14]). The Minister also had regard to the violent nature of the applicant’s offending, as reflected in the sentencing remarks, and found that the applicant had a criminal record with offending over a period of four months which involved violence (at [19]).
4.7.1.1“Risk of engaging in criminal conduct in Australia”
The Minister then turned to consider the “Risk of engaging in criminal conduct in Australia” under various subheadings from [20]–[81] of his reasons, namely: factors contributing to past conduct; remorse and rehabilitation; and recent adverse conduct in the Melbourne Immigration Transit Accommodation (MITA).
In commencing his discussion of the risk that the applicant might engage in criminal conduct in Australia, the Minister stated that:
20. In making my assessment regarding the risk that may be posed by [Mr EPU] to the Australian community, I have had regard, cumulatively, to:
•the nature of the harm to individuals or the Australian community should [Mr EPU] engage in further criminal or other serious conduct; and
•the likelihood of further criminal or other serious conduct, taking into account the likelihood of [Mr EPU] reoffending.
21. Having regard to the nature of [Mr EPU’s] conduct in the past, as outlined above, I consider that any future offending of a similar nature would have the potential to cause physical and psychological injury to members of the Australian community through the use of violence.
22. In assessing the likelihood of [Mr EPU’s] reoffending in the future, I have considered factors that may assist to explain [Mr EPU’s] past conduct, as well as his more recent conduct, remorse and rehabilitation.
The nature of the task outlined by the Minister at [20] is alleged by the applicant to demonstrate error, as I later explain in the context of addressing Ground 3 of the further amended originating application.
4.7.1.2“Factors contributing to [the applicant’s] past conduct”
In considering the “factors contributing to [the applicant’s] past conduct”, the Minister took into account mitigating circumstances, including that before his arrival in Australia at the age of 11 the applicant had witnessed violent conflict in his home country, and that he had little support in Australia after his father was taken into criminal custody and he was often left alone. His friends at school invited him to parties and introduced him to alcohol and drugs when he was 14 years of age which made him feel good, reduced his loneliness, and allowed him to enjoy the company of people whom he thought respected him. Around this time he committed the offences (at [23]–[24]). The Minister also took into account psychological reports noting that the applicant was also subject to violence from his father as a young child and that he was bullied, beaten and sexually assaulted while in high school, becoming a protected person under an Apprehended Violence Order (at [25]–[27]). The Minister considered the report dated 6 February 2021 of Dr Zimmerman who was of the view that the applicant had a history of poor emotional regulation, depression and Post-Traumatic Stress Disorder (PTSD) and expressed the opinion that the applicant’s disrupted, violent and abusive childhood was critical to understanding his offending (at [28]–[30]). The Minister concluded that “having considered the information above, I find that [Mr EPU’s] young age, past trauma, lack of family (and adult) support and the use of alcohol and drugs contributed to his offending behaviour” (at [31]).
4.7.1.3“Remorse and rehabilitation”
The Minister then turned to the topic of “remorse and rehabilitation”. Among other things, the Minister said that he had considered the Magistrate’s comment that the applicant accepted responsibility for his conduct in the first offence and had entered a guilty plea at the earliest opportunity (at [32]). The Minister also “note[d]” the Tribunal’s comments (in the context of its finding that the applicant does not pose a danger to the Australian community) that the applicant had demonstrated maturity, genuine remorse and insight into his past behaviour and the Tribunal’s finding that he had a low risk of reoffending, given the supports he has in place and his commitment to continuing psychological and commencing trauma counselling (at [33]). The Minister referred to the applicant’s plans to start his life over with the assistance of his stepsister, his interest in undertaking a course in bricklaying, and his commitment to continuing treatment to overcome his traumatic childhood, finding that:
36. I have given weight to [Mr EPU’s] comments that he has used his time effectively in juvenile custody and immigration detention and has strengthened his faith. I acknowledge his comment that he now prays every day and finds that beneficial in helping to control his emotions. I note that upon his release into the community, [Mr EPU] intends to find a local mosque and become part of the community. I accept that religious community support may constitute a protective factor for [Mr EPU] …
The Minister also accepted the applicant’s expressions of remorse and his submissions that he is ashamed of his past and what he did, that he knows there is no excuse for his behaviour, and that he admits to making poor choices and wants to learn from his mistakes (at [37]). Furthermore, the Minister gave weight to Dr Zimmerman’s “submission” that Mr EPU’s increased insight and ability to empathise with those he has threatened and harmed in the past is consistent with his development from an early adolescent to a young adult, and noted Dr Zimmerman’s comment that a tendency towards emotional dysregulation, as seen in the applicant’s case is likely to improve with maturation as she considered was already occurring (at [38]). The Minister also noted Dr Zimmerman’s updated report dated 9 March 2021 in which she took into account various supports for the applicant if he were to be released from immigration detention, including:
(1)referral to a drugs and alcohol service and connection to the director of a multicultural youth centre to assist him in pro-social youth activities including sports, religious education and community support services;
(2)a referral for the applicant to a psychologist to work with him on offence specific issues including the development of skills around emotional regulation and consequential thinking;
(3)the applicant’s engagement with a counsellor to assist him with trauma and torture counselling; and
(4)his stepsister’s letter of support where plans for his accommodation, financial support, and practical day-to-day support are outlined (Minister’s reasons at [39].)
The Minister’s reasons then continue:
40. Dr Zimmerman concludes that with the above supports in place, [Mr EPU] represents a ‘low risk of future violent offending’. She further notes however, that if such supports are no longer available to [Mr EPU] his risk of further offending would increase to a moderate risk of future violent offending.
41. I accept Dr Zimmerman’s opinion that [Mr EPU’s] past drug/alcohol use was consistent with him partying rather than his having a pattern of dependency, and I agree with a recommendation that [Mr EPU] would benefit from future drug/alcohol counselling to reduce the risk of relapse during times of stress …
42. I acknowledge Dr Zimmerman’s overall conclusion that [Mr EPU] currently represents a low risk of future violent offending …
(Emphasis in the original.)
The Minister also referred to the report of Dr O’Brien, psychologist, on 6 October 2018 who stated that the applicant presented with some risk of reoffending but that several social and individual risk factors once present in his life, such as poor parental management, peer delinquency and substance use, were no longer active influences and that providing appropriate support services in the community could further mitigate his risk of reoffending (at [43]).
The Minister then referred to the fact that while in immigration detention, the applicant had been involved in group programs run through the International Health and Medical Services which primarily focused on mental health and wellbeing, and observed that reports showed that the applicant was engaged during the sessions (at [44]). Further offers of support from different organisations if the applicant were to be released were also noted by the Minister (at [45]–[47]), and the Minister stated that he had considered submissions on behalf of the applicant including as to his willing engagement with counselling services and drug and alcohol prevention sessions and referring to his sobriety for over three and a half years (at [48]). The Minister also stated that he took into account the submission referring to his participation in education programs on drugs and alcohol and to the fact that, as a committed Muslim, he does not intend to use drugs or alcohol in the future as it would be against his religious beliefs (at [52]).
The Minister concluded on the issue of the applicant’s remorse and rehabilitation that:
53. Having considered the above, I find that [Mr EPU] has shown some remorse for his previous criminal actions and undertaken and completed rehabilitation courses while in detention. I have considered the evidence provided by experts, including psychologists in relation to [Mr EPU’s] risk of reoffending. While I note, there is evidence of [Mr EPU’s] rehabilitation and opinion that he is a lower risk of reoffending, I have also considered that [Mr EPU] has remained in a controlled environment where he has received ongoing engagement with support services. I consider the risk of [Mr EPU] committing criminal offences increases once he is removed from this environment.
The finding at [53] is challenged by the applicant on the basis that there was no evidence to support that finding (Ground 4).
4.7.1.4“Recent adverse conduct – Conduct in the [MITA]”
By proposed Ground 10 of the second further amended originating application, the applicant also seeks to challenge the Minister’s reasoning with respect to the topic addressed by him under the subheading “Recent adverse conduct – Conduct in the [MITA]”. In particular, Ground 10 relevantly alleges that the Minister failed to give genuine consideration to evidence and submissions advanced by Mr EPU relevantly to the effect that his involvement in “incidents” in immigration detention was not probative of his risk of engaging in criminal conduct in the future outside immigration detention.
At [54], the Minister stated that:
I have taken into consideration the client incident reports and file note, which outline adverse behaviours [Mr EPU] has engaged in during his time in the MITA (since 7 September 2017). I acknowledge that most incidents were relatively minor, however, I have also considered that [Mr EPU] has been verbally and physically aggressive on occasion towards other detainees and staff members of the MITA. I note that [Mr EPU] has also engaged in behaviours including throwing, kicking and banging his head on furniture or threatening to do so.
It follows for the reasons set out above that the applicant cannot establish that the Court should infer on the balance of probabilities that the Minister must, within the timeframe potentially available to him, have failed to engage in an active intellectual process with the merits of the decision including with the various states of mind on the different issues proposed in the draft statement of reasons.
It is true that in Splendido (as the applicant submitted), Mortimer J also spoke at [23(c)] of the possibility that a line may be crossed beyond which the Minister’s adoption of draft reasons prepared by the Department “may turn into a de facto delegation of decision-making power, with a consequent failure by the repository of the power to consider independently and genuinely the merits of the decision to be made”. However, the applicant has not shown that this is such a case. That being so, Ground 8 must fail.
5.10 Did the Minister err in failing to consider that merits review would not be available if he made the s 501 decision personally/was this legally unreasonable (Ground 9)?
Finally, Ground 9 of the application alleges that:
The making of the decision by the Minister personally, so as to deny the [a]pplicant merits review, was legally unreasonable, alternatively, such denial was a legal consequence of his decision that was not considered.
Particulars
(a) There is no aspect of the matter which justified the making of a s 501(1) decision by the Minister personally, with the attendant consequence that the [a]pplicant would be deprived of the ability to seek merits review.
(b) A merits review is a significant right or privilege which affords the review applicant the rights to an oral hearing and to make arguments in response to submissions made by the Minister. Those features are not available at primary stage.
(c) The Minister’s reasons do not show any consideration that the legal consequence of a decision made by him personally would deprive the [a]pplicant of the right to merits review.
This contention may be answered shortly. As the Minister submits, the applicant’s complaint on this ground is not that the Minister refused the grant of his visa, but rather about the antecedent step by the Minister to exercise the powers vested in him personally to consider whether to refuse the grant of the visa under s 501, rather than leaving it to a delegate to make the decision. Yet the Parliament has chosen the Minister as the primary repository of that power, with the option under s 496 for the Minister to delegate this power, among others. As the Minister also submits, if the Minister should decide to exercise the power personally, that is simply a function of the Parliament’s legislative decision. There is nothing in the legislative scheme, and no aspects identified by the applicant to suggest otherwise, that a choice by the Minister to exercise the power personally should bear upon the validity of her or his decision to refuse a visa under s 501 of the Act. Further and in any event, the Minister was appraised at the time of making his decision of the consequence that, if he should personally exercise the power under s 501, the decision would not be reviewable in Tribunal. Thus the departmental submission to the Minister stated at [5] that:
It is open to you to personally consider this matter or refer the matter to the departmental delegate for a decision. The Act is clear on that should you personally exercise the power to refuse, such a decision is not reviewable by the AAT. However, it would be open to [Mr EPU] to seek judicial review of your decision in the Federal Court.
(R-TB at p. 10.)
As such, I accept the Minister’s submission that the applicant has not established on the balance of probabilities that the Minister did not consider that consequence.
6. PROPOSED ADDITIONAL GROUND OF REVIEW (GROUND 10)
6.1 Proposed Ground 10
The applicant contended that existing Ground 4 raised the question of the Minister’s treatment of the central issue of recidivism once the applicant was removed from immigration detention and that there should not be an unduly technical or restrictive approach taken to construing the scope of Ground 4 (citing Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 at [13] (the Court)).
That notwithstanding, the applicant pursued an application for leave to re-open and amend the further amended originating application so as to include an additional ground, being proposed Ground 10. By that ground, the applicant wishes to contend that:
The Minister failed to give genuine consideration to evidence and submissions advanced by the [a]pplicant to the effect that:
(a) his involvement in ‘incidents’ in immigration detention was not reflective of, probative of, or a sound basis upon which to assess, his risk of engaging in criminal conduct in the future outside of immigration detention (for the purposes of determining whether the power in s 501(1) of the Act was enlivened by reason of s 501(6)(d)(i) and/or his risk to the Australian community (for the purposes of deciding whether, in the Minister’s discretion, to exercise the power in s 501(1) once the power was enlivened); and/or
(b) his past use of alcohol or other intoxicants, to the extent that it contributed to his offending, was not reflective of, probative of, or a sound basis upon which to assess, his risk of engaging in criminal conduct in the future outside of immigration detention (for the purposes of determining whether the power in s 501(1) of the Act was enlivened by reason of s 501(6)(d)(i) and/or his risk to the Australian community (for the purposes of deciding whether, in the Minister’s discretion, to exercise the power in s 501(1) once the power was enlivened).
The Minister, as earlier mentioned, opposed the grant of leave to re-open.
6.2 Should leave to re-open be granted?
The principles relevant to the grant of leave to re-open are conveniently explained in the oft-cited decision of Kenny J in Inspector General in Bankruptcy v Bradshaw [2006] FCA 22 as follows:
24. The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence (Hughes v Hill [1937] SASR 285 at 287; Smith v New South Wales Bar Association [No 2] (1992) 108 ALR 55 at 61-2); (2) inadvertent error (Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts (Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 (“UTA”) at 478; and (4) mistaken apprehension of the law (UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard’s Pty Ltd (No 2) [2004] FCA 1310 (“Silver Fox”) at [22] and [25].
The present case is not a case within any of the four recognised classes of case referred to by Kenny J although, as her Honour explained, those classes are not exhaustive. Rather, as her Honour further explained at [26], “the overriding principle requires that the Court consider whether, taken as a whole, the justice of the case favours the grant of leave to re-open.”
In the present case, there are a number of considerations which, as the Minister properly accepted, broadly speaking were either neutral or weighed in favour of the grant of leave to re-open, including:
(1)the applicant does not propose to lead any new evidence;
(2)the Minister does not seek to meet the proposed new ground with further evidence; and
(3)otherwise than delay, inefficiency and additional costs caused by the application to re-open, there was no matter of specific prejudice to the Minister which could not be cured by a suitable order as to costs.
However, the respondent contended that other considerations on balance favoured refusing the grant of leave to re-open, placing particular emphasis upon the need for, and public interest in, the finality of litigation given, among other things, that:
(1)the application was not foreshadowed until the applicant’s oral reply on the last day of trial;
(2)the application was not made until after judgment was reserved;
(3)the applicant has competent legal representation;
(4)the applicant’s judicial review application has already been the subject of extensive pre-trial amendment and six different sets of trial submissions by the applicant alone;
(5)the applicant has not as demonstrated why the case falls within the “exceptional” category such that he should be permitted leave to re-open after judgment has been reserved;
(6)notwithstanding the Clark affidavit, there is an absence of any cogent evidence as to why the proposed new ground and accompanying submissions were not previously agitated;
(7)the fact that the proposed new ground is plainly not encapsulated within any pre-existing ground including Ground 4; and
(8)the concern that, if exchanges between counsel and the bench could provide the basis, without more, for applications for leave to amend in the court’s busy migration jurisdiction, that would either encourage many more such applications of this kind or encourage judges not to engage in exchanges with the bench.
On the other hand, the applicant submitted that the proposed additional ground “is little more than formalising a vehicle for the determination of matters that have already been thoroughly ventilated in oral submissions, and which arose out of aspects of the Minister’s reasons which were already in issue, including aspects referred to or otherwise already in close connection with existing Ground 4 …” (AS (9 Sept 2021) at [6]; footnotes omitted). Furthermore, the applicant submitted that to the extent that any further explanation for delay is required, “it is found from the circumstance that crystallised during the course of oral argument about the scope of the existing grounds” (ibid).
Finally, the applicant submitted that the merit of the proposed ground is particularly significant where, as here, the liberty of the individual is at issue. Thus, the applicant submits, the merits of proposed Ground 10 are particularly important because it is likely to be in the interests of justice to ensure that an administrative decision affected by jurisdictional error and capable of depriving a young person of liberty is not carried into effect: see by analogy Fualau v Minister for Home Affairs [2020] FCAFC 11 at [16] (the Court), citing ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25].
I do not accept that proposed Ground 10 was encapsulated in whole or in part within Ground 4 of the application. As earlier explained, Ground 4 is concerned with the sufficiency of the evidence on which the finding as to Mr EPU’s risk of future offending was based, whereas Ground 10 is concerned with whether or not the Minister gave genuine consideration to certain factors the subject of submissions by the applicant which bore upon the risk of future offending. I also consider that the public interest in the finality of litigation is a powerful factor tending against the grant of leave, as is the need to keep the ambit of the inquiry within reasonable bounds: see Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 (Nweiser) at 476 (Clarke JA (with whose reasons the remainder of the Court agreed)). These factors carry particular weight where the applicant has already amended the application after the Minister’s decision was given and where the application for leave to re-open was made after judgment had been reserved. Nor was any evidence led as to the reason for the delay in raising the issue although, as the Minister submits, the reason would appear to be that the issue did not occur to his legal representatives until a late stage in the proceeding following observations from the bench in arguendo. That is not generally a sufficient reason for the grant of leave. Having regard to all of the circumstances, on balance I do not consider that it is in the interests of justice to grant leave to re-open.
7. CONCLUSION
The application for leave to re-open is refused with costs. The application for judicial review is granted and the Minister’s 2021 refusal decision is quashed. In the event that agreement cannot be reached, I will hear the parties as to:
(1)what, if any, other substantive orders should be made, given that it is not self-evident that the matter should necessarily be remitted to the Minister for redetermination according to law; and
(2)the remaining issues of the costs of the interlocutory application filed on 10 August 2021, the application for judicial review, and the application for leave to re-open.
I certify that the preceding two hundred and fifty-five (255) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry. Associate:
Dated: 10 December 2021
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