‘Not open on the evidence’ is not the same as ‘no evidence’

The persistency with which these two separate jurisdictional errors continues to be conflated by the Minister deserves calling out.

Justice Perry did so in BMW16 v Minister for Immigration and Border Protection [2017] FCA 1036 at [23]:

A finding may taint a decision with jurisdictional error in cases where a particular finding is not open on the evidence, even though it cannot be said that there is no evidence on the point.

The requirement that illogicality or irrationality be ‘extreme’ is a gloss that adds nothing

The proposition to the contrary, that there is a requirement for illogicality or irrationality to also be ‘extreme’, is made by the Minister with alarming frequency and betrays an understanding of what exactly is required to make out a jurisdictional error of this kind.

In AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 the Federal Court said:

[24] Referring to CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146; 253 FCR 496 at [61], the Minister submitted that the alleged illogicality or irrationality of reasoning must be of an “extreme” kind, not a matter on which reasonable minds might differ, and not a matter on which a supervising Court simply disagrees with a decision-maker, even emphatically.

[25] Save for the gloss arising from the word “extreme”, those propositions can also be accepted and are well established. There is nothing in High Court authorities such as Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 which suggests that the adjectival description of “extreme” is a necessary element in a finding of illogicality or irrationality. If the decision-maker’s fact finding is proven to be irrational or illogical, in a way which was material to the outcome of the review, that is sufficient. The stringency of the threshold arises in the need for the decision-maker’s reasoning to be capable, objectively, of being described as irrational or illogical.

Irrationality and Tendency reasoning in speculating that there will be a future ‘unacceptable risk’ of re-offending

In Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132, Mortimer J examined the circumstances of the decision-maker making findings of fact, when the subject-matter of those findings were not mandatory relevant considerations.

Generally speaking, it is difficult to identify any mandatory consideration going to the exercise of the discretion in s 501CA(4)(b)(ii) to revoke a mandatory cancellation of a visa due to the existence of ‘another reason’, when the decision is made by the Minister (or Assistant Minister) and so he or she is not bound by any directions made under s 499.

Mortimer J said:

24. It is true that Mr Splendido could have included details of the facts and circumstances of his offences in his “representations” to the Assistant Minister, which may have provided more information about his offending conduct. Nevertheless, there was no onus on Mr Splendido to establish that he posed no risk to the Australian community, or that he posed an “acceptable” risk. That is significant if the Assistant Minister continues to contend (see [103] below) that this matter is not a legally relevant consideration. If the Assistant Minister chose to put that matter at the forefront of his reasoning (despite contending he was not obliged to consider it), then the Assistant Minister was required to have a probative basis to make findings of fact about the existence of any such risk. For example, he could not avoid this requirement by relying on a proposition to the effect that if Mr Splendido wished to submit he posed no risk, he needed to establish that fact positively through documents such as sentencing remarks.

25. At [79] of the Assistant Minister’s reasons, he stated that Mr Splendido was “on notice that his criminal conduct was calling his visa status into question”, and yet still committed further offences. The Assistant Minister’s finding was based in part on a finding (in the first sentence in [79]) that Mr Splendido “received a formal warning from the Department” (my emphasis) on 2 May 2013. The date 2 May 2013 is in fact the date of the warning letter.

26. On the material before the Court, the Assistant Minister did not have any information before him which would support a finding of the kind he made in the first sentence of [79] of his reasons. The warning letter was addressed to Mr Splendido at a private residential address in suburban Melbourne. There is no evidence whether he was living there at that time. There is no evidence whether he received it. The copy of the acknowledgment which the letter instructed Mr Splendido to sign and return is unsigned, and there is no evidence it was returned by Mr Splendido. There is no acknowledgment in the other material submitted by Mr Splendido that he received that warning letter. There is no basis in the evidence for a finding that Mr Splendido received the letter, or (more importantly) that he knew the potential consequences for his ability to remain in Australia if he committed further offences after the notice had been issued. Given Mr Splendido had, on 13 July 2012, been sentenced to a period of 15 months imprisonment to be served concurrently with his (then) restored suspended sentence, it would seem unlikely that in May 2013 he was residing at a private residential address in suburban Melbourne.

27. It is true, as the Assistant Minister’s reasons note, that on an earlier occasion, in approximately August 2012, Mr Splendido had acknowledged receipt of a letter containing a “notice of intention to consider cancelling a visa under subsection 501(2) of the Migration Act 1958”. That notice was not in evidence, nor was there any evidence about the circumstances in which Mr Splendido received the notice, or the circumstances in which he signed the acknowledgment in August 2012, at which point in time it seems likely (for the same reasons I have expressed above) that he was incarcerated. On this occasion in August 2012, he gave his address as Beechworth Correctional Centre in a “Personal Details Form” dated the same date as the signed acknowledgment. Therefore, the circumstances in which he signed the acknowledgment, and what he understood by it, might have called for some examination and reflection.

28. While it might therefore have been open to the Assistant Minister to find that Mr Splendido was “on notice” in August 2012 that his criminal conduct was “calling his visa status into question”, even that finding had the slimmest of probative bases without any evidence (so far as the Court can tell) about the circumstances in which Mr Splendido signed the acknowledgement. Further, certainly on the evidence before the Court, the additional finding by the Assistant Minister about receipt of the 2013 warning letter was not supported by any evidence.

29. In itself, whether or not Mr Splendido received the 2013 warning letter and understood its contents, or had any similar understanding in mid-2012 because of earlier Departmental correspondence, might have been of marginal relevance on judicial review and on this appeal. However, when “facts” to this effect are found by the decision-maker, and then used in a reasoning process to conclude that, in substance, Mr Splendido deliberately chose to contravene the law when he knew his migration status in Australia was at risk, then there must be probative evidence of the underlying fact of receipt, and (by extension) Mr Splendido’s understanding of the letter’s contents.

(emphasis added)

The Assistant Minister also used the bare fact that there had been historical offending, to conclude that there would be a likelihood (as opposed to unacceptable ‘risk’) of future reoffending.  The leap in this logic was discussed at [72]-[85].


Illogicality, irrationality (and unreasonableness) can be used to challenge intermediate facts, not just the end decision

The contention to the contrary is still sometimes agitated by the Minister, but that is plainly wrong. If authority is needed, see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [47]:

… Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error (see also the observations of Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [113] and the cases referred to therein).