FEDERAL COURT OF AUSTRALIA

Raibevu v Minister for Home Affairs [2018] FCA 2052

ORDERS

THE COURT ORDERS THAT:

1.    The Application for an Extension of Time is granted and time is extended up to 3 September 2018.

2.    The proceeding is dismissed.

3.    The Applicant is to pay the costs of the Respondent, either as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The Applicant in the present proceeding, Mr Seremaia Tuwai Raibevu (also known as Mr Jeremy Hayes), is a citizen of Fiji. He first arrived in Australia in May 1995 when he was aged 15 years. He subsequently applied for and was granted a Class AO Subclass 802 (Child) visa in January1996.

2    In March 2012, Mr Raibevu was convicted on four counts of aggravated sexual assault – break and enter with intent. He was sentenced to two terms of imprisonment of nine years and two terms of imprisonment of six years.

3    In February 2017, Mr Raibevu’s visa was cancelled by a delegate of the Minister for Immigration and Border Protection (the “Delegate”) under s 501(3A) of the Migration Act 1958 (Cth). The Delegate was not satisfied that Mr Raibevu passed the “character test” prescribed by s 501(3A) by reason of Mr Raibevu having a “substantial criminal record”. Also in February 2017, Mr Raibevu requested that the Minister revoke the Delegate’s decision pursuant to s 501CA of the Migration Act. On 24 July 2018, the Assistant Minister for Home Affairs (the “Assistant Minister”) decided not to revoke the Delegate’s decision.

4    On 3 September 2018, Mr Raibevu filed in this Court an Originating Application seeking review of the Assistant Minister’s decision. On the Minister’s approach, that Originating Application was said to have been filed some six days out of time. The Minister accordingly filed a Notice of Objection to Competency on 5 October 2018. Mr Raibevu then filed an Application for an Extension of Time on 16 October 2018, which was supported by an affidavit. The explanation provided by Mr Raibevu for not filing his proceeding within time was that he initially used the wrong form and was, on his account, advised by the Registry staff that he had until 5 September 2018 to commence a proceeding.

5    Mr Raibevu appeared in person before this Court on 18 October 2018. He then sought to be represented by a solicitor, Mr Qoro, who had not filed a Notice of Appearance. The Respondent Minister appeared by Counsel. Mr Qoro sought an adjournment to enable him to prepare submissions on behalf of Mr Raibevu. That application was not opposed and the proceeding was adjourned to 23 November 2018. At the resumed hearing, however, Mr Qoro did not appear and Mr Raibevu appeared unrepresented. The Respondent Minister was again represented by Counsel. The two matters to which Mr Raibevu made particular reference in his oral submissions were:

    the failure of the Assistant Minister to make express reference to those aspects of his past conduct which threw a more favourable light on him rather than the Assistant Minister’s focus on only negative aspects; and

    the steps he had taken to rehabilitate himself and his commitment to his family.

6    Assuming an extension of time is required, it is concluded that the extension should be granted because there is an absence of prejudice to the Respondent and there was, on any view of the facts, an attempt to commence the proceeding within time and uncertainty on the part of Mr Raibevu as to the actual date by which he had to commence. The Respondent Minister, moreover, consents to the extension sought. It is unnecessary to resolve any question as to whether the Originating Application was, in any event, filed within time. Such may have been the case if the 35 day period commenced to run as from 31 July 2018, being the date upon which Mr Raibevu was given “written notice of the decision”.

7    It is further concluded, however, that none of the Grounds of Review have any merit and that the proceeding should be dismissed with costs.

Sections 501(3A) & 501CA

8    Section 501(3A) of the Migration Act provides for the cancellation of a visa where a visa holder does not pass the “character test”. That sub-section provides as follows:

The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

   (ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

9    Section 501CA provides for the revocation of a decision made under s 501(3A) and provides in part as follows:

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

   (b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

10    These provisions were inserted into the Migration Act by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). Referring to the explanatory memorandum to the Bill which was later enacted as that amending Act, Moshinsky J in BCR16 v Minister for Immigration and Border Protection [2016] FCA 965 observed:

Sections 501 and 501CA

[46]    Sections 501(3A) and 501CA, which are set out above, were inserted into the Migration Act by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). The explanatory memorandum to the Bill which became that Act stated that the Bill amends the Migration Act to implement a number of reforms to the character and general visa cancellation provisions arising in part from a review carried out by the Department in 2013. It was stated that the character provisions in Pt 9 of the Migration Act had been in place in their current form since 1999, and the general visa cancellation provisions in Subdivision D of Div 3 of Pt 2 had remained largely unchanged since 1994. The explanatory memorandum stated that, since that time, the environment in relation to the entry and stay in Australia of non-citizens had changed dramatically and that “[t]he amendments to the Migration Act that are proposed to be made by the Bill will strengthen the character and general visa cancellation provisions and reform the approach to the cancellation of visas of non-citizens who are in prison”.

[47]    In relation to proposed s 501(3A), the explanatory memorandum stated that “[t]he intention of this amendment is that a decision to cancel a person’s visa is made before the person is released from prison, to ensure that the non-citizen remains in criminal detention or if released from criminal custody, in immigration detention while revocation is pursued”. In relation to proposed s 501CA, the explanatory memorandum stated that “[t]he requirement to give notice to the person and invite the person to make representations about revocation of the decision to cancel allows the person the opportunity to satisfy the Minister or delegate that the person passes the character test, or that there is another reason why the original decision should be revoked”.

Justice Moshinsky thereafter went on to observe as follows in respect to s 501CA(4):

[73]    The discretionary power conferred on the Minister by s 501CA(4)(b)(ii) is unfettered in its terms. The Minister is given the power to revoke a decision to cancel a visa if he or she is satisfied that “there is another reason why the [cancellation] decision should be revoked”. Nevertheless, as discussed in NBMZ [[2014] FCAFC 38, (2014) 220 FCR 1] in the context of s 501(1), the law imposes certain limits on the exercise of the discretion. As with s 501(1), under s 501CA(4), the Minister may not act arbitrarily, capriciously or legally unreasonably. The subject matter, scope and purpose of the Act may also require that certain considerations be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J; and Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at [71] per Kiefel and Bennett JJ. It may be accepted that, by parity of reasoning with NBMZ, in the case of a decision under s 501CA(4) whether or not to revoke the cancellation of a protection visa, one of those considerations is the statutory (that is, legal) consequences of non-revocation of the cancellation of the visa.

Although an appeal against this decision was allowed, these observations remain apposite.

11    The discretion conferred by s 501CA(4)(b)(ii) has been described as a “broad dispensing power” and as a “statutory power of clemency”: Mowatt v Minister for Home Affairs (No 2) [2018] FCA 1157 at [17] per Steward J. Whether the discretion can be accurately so described may be left to one side. However it be described, it is a discretion which may be exercised if the Minister is satisfied that “there is another reason why the original decision should be revoked”. The occasion for the exercise of the discretion necessarily arises only after a decision has first been made to cancel a visa on the basis that a visa holder has failed the “character test”. In BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78, (2017) 252 FCR 82, Collier, Murphy and Burley JJ described the context in which the discretion conferred by s 501CA(4) is to be exercised as follows:

[28]    The task of the Minister required by s 501(2) of the Migration Act, which was examined by the Full Court in Moana [v Minister for Immigration and Border Protection [2015] FCAFC 54, (2015) 230 FCR 367], is not the same as that imposed on the Minister by s 501CA.

[29]    Section 501(2) requires the Minister to assess his or her level of satisfaction as to whether the person has passed the character test as defined by s 501(6). Section 501(6) is relatively prescriptive, including s 501(6)(d) which requires the Minister to consider whether, in the event the relevant person is allowed to enter or to remain in Australia, there is a risk that the person would, inter alia, engage in further criminal activity or represent a danger to the Australian community (or to a segment of that community).

[30]    On the other hand s 501CA, in particular s 501CA(4), requires the Minister to engage in a different decision-making process. Pursuant to s 501CA(4) the Minister may revoke a visa cancellation decision if the person makes representations and the Minister is satisfied either that the person satisfies the character test or that there is another reason why the original decision should be revoked. The factors to which the Minister can have regard in determining whether or not to revoke a visa cancellation decision are unconfined by the statute, subject to the principle that they must be those which can be implied from the subject-matter, scope and purpose of the legislation: Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40

The proposed Grounds of Review

12    The Grounds of Review upon which Mr Raibevu sought to rely are stated as follows (without alteration):

a.    Ground 1 - Unreasonableness

5.    The Minister’s conclusion that Mr Raibevu represents an unacceptable risk of harm to the Australian Community was unreasonable and therefore his decision to cancel Mr Raibevu’s visa was unreasonable

Particulars

(i)    The Minister ignore key evidence supporting Mr Raibevu’s case and distort other evidence by omission in order to achieve an outcome whereby Mr Raibevu’s visa.

(ii)    The Minister failed to lawfully consider and also ignore the comments of the sentencing Judge in Mr Raibevu’s favour, and which were relevant to the likelihood of reoffending and rehabilitation and the risk Mr Raibevu poses to the Australian community and such comments were:

a.    Mr Raibevu was given full discount of twenty-five per cent for pleading guilty at the first opportunity;

b.    By pleading guilty, the victim has not been required to relive the experience by giving evidence at a contested hearing;

c.    The absence of taking steps to rehabilitate himself whilst in remand must not be held against Mr Raibevu because Correctional Services Department is often reluctant to place a person on necessary counselling courses, whether it be for alcohol or otherwise whilst a prisoner is in remand

d.    That the sexual offence is one which Mr Raibevu has no prior similarity in his criminal history

e.    That Mr Raibevu’s prospect of rehabilitation are reasonable given his age at that time and his responsible history of employment

     f.    That Mr Raibevu was ordered to serve his sentence concurrently.

g.    That Mr Raibevu was given a longer period of parole because of reasonable prospect of rehabilitation.

h.    Mr Raibevu was not sentenced to a period of imprisonment for the offence of common assault and assault occasioning actual bodily harm committed in 2004 and 2008 respectively but was granted good behaviour bond

Ground 2

6.    Further, the Minister’s decision is unreasonable because it leads to an outcome which is not evident or transparent by reason of having regard the sentencing Judge comments selectively and not to all of those comments - the particulars of which are outlined in paragraph 5 above.

Ground 3

7.    The Minister failed to lawfully consider the protection of the Australia community in exercising his discretion to refuse or cancel Mr Raibevu’s visa as a Non-Citizen

Particulars

a.    Failure to consider and address the likelihood or otherwise of the applicant re-offending

b.    The Minister relied on supposition, rather than evidence of risk

c.    In assessing the risk to the Australia Community, the Minister failed to consider the evidence going to the risk and the degree of risk posed by the Applicant, Mr Raibevu.

Ground 4

8.    The Minister’s decision was legally unreasonable

Particulars

a.    The finding, by implication, that Mr Raibevu posed an unacceptable risk to the Australia community was made without any assessment of the chances of the risk materialsing

b.    The Minister did not rely on evidence in finding that there was a risk

c.    The decision to cancel Mr Raibevu’s visa was delayed for more than 5 years from date of sentence - which is inconsistent with a finding that he represented an unacceptable risk of harm

d.    The justification for the finding that Mr Raibevu presented an unacceptable risk to the Australia community was insufficient to outweigh the inference that the decision to cancel the applicant’s visa was unreasonable.

Further particulars

i.    Not clear how the Minister came to the conclusion that unassessed danger to the Australian community outweighed the apparently strong countervailing circumstances, including

i)    The Applicant is not given a chance to live in the Australia community

ii)    The Applicant committed the sexual offence in 2012.

iii)    The two assault offences were committed in 2004 and 2008 were not similar to the sexual offence committed in 2012

iv)    Applicant had a very strong family and church ties

v)    Applicant has two young children who are Australia Citizen.

9.    By reason of paragraphs 9-11, the decision were vitiated by unreasonableness, due to lack of evidence, transparency and intelligible justification to cancel Mr Raibevu’s visa. Al

Unreasonableness & the risk of harm – Ground 1

13    The first Ground of Review asserts that the Minister’s conclusion that Mr Raibevu represents an unacceptable risk of harm to the Australian community was unreasonable. Two Particulars are provided, namely:

    that the Assistant Minister ignored “key evidence” and distorted “other evidence by omission”; and

    that the Assistant Minister failed to consider certain aspects of the remarks of the sentencing Judge.

The reference in the Particulars to “ignor[ing] key evidence” and “distort[ing] other evidence” is a reference to the following observations of Collier J in Lyons v Minister for Immigration and Border Protection [2017] FCA 1381 (“Lyons”):

[27]    First, in having regard to Mr Lyons’ criminal conviction for extortion in 2007, it is clear that in his reasons the Minister “cherry-picked” circumstances of the conviction and sentence which supported an exercise of discretion to cancel Mr Lyons’ visa. On the face of his reasons the Minister appeared to ignore comments of the sentencing Judge in Mr Lyons’ favour, and which were relevant to the likelihood of reoffending and rehabilitation, and the risk Mr Lyons posed to the Australian community. Those comments of the sentencing Judge included that:

•    Although the prosecution submitted that it would be appropriate to sentence Mr Lyons and his co-accused to a term of imprisonment, the prosecution also conceded that “because of the mitigating factors, you might be given a parole release date as of today”;

•    Although the maximum penalty for the offence of extortion was 14 years imprisonment, Mr Lyons received a sentence of one year;

•    Mr Lyons had co-operated with the system of justice by pleading guilty;

•    Mr Lyons had had no criminal history whatsoever; and

•    Mr Lyons had had a good work history and was in a stable relationship.

[28]    In relation to this issue the Minister submits that, following the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 139 FCR 505 at [81], the Minister was not required to have regard to the comments of the sentencing Court. That may well be. Nonetheless, the Minister did have regard to some of his Honour’s comments. If the Minister has regard to the comments of the sentencing Judge, he is not entitled to do so selectively. Such selectivity is itself unreasonable because it leads to an outcome which is not evident or transparent.

[29]    I am not satisfied that simply because the Minister had the comments of the sentencing Judge before him that the Minister had regard to all of those comments. I make this observation in circumstances where there were many comments of the sentencing Judge in favour of Mr Lyons, which were in turn relevant to the Minister’s decision but to which the Minister did not refer.

(Emphasis in original.)

These observations of her Honour, it may be noted, were distinguished by Bromwich J in Ali v Minister for Home Affairs [2018] FCA 1693. In doing so, his Honour explained the decision in Lyons as follows:

[58]    Reliance was placed by Mr Ali on the decision in Lyons v Minister for Immigration and Border Protection [2017] FCA 1381. However, Lyons largely turned on the failure of the Minister to appreciate well-settled sentencing principles as they applied to the facts of that case and had an important bearing on the assessment of risk to the community. It turned on the Minister having regard to a sentence that was imposed, but not to the fact that the sentence was suspended, and thus how that latter factor needed to be considered in relation to assessing risk to the community. A second aspect of Lyons concerned the adverse treatment of a pragmatic guilty plea by treating that as somehow an aggravating circumstance. Each misunderstanding affected the exercise of jurisdiction. There is no such departure from the understanding of sentencing principles demonstrated in this case, let alone such a departure that could be said to have exposed error in the performance of the jurisdictional task. Lyons must be seen as a rare and isolated case, turning on its own facts that exposed jurisdictional error in an unusual way.

14    The difficulty in resolving the first aspect of this Ground is that there is no identification in the first Particular of the “key evidence” or the “other evidence” to which reference is made. It may, however, be safely assumed that the “key evidence” or “other evidence” intended to be referred to as the evidence which was “ignore[d]” or “distort[ed]” are those matters referred to in the second Particular.

15    The emphasis placed by Mr Raibevu upon the sentencing remarks of the District Court Judge is understandable. Those remarks expose the reasoning process of the Judge before imposing the sentence, including those aspects of the case that led to the imposition of substantially less than the maximum sentence. The maximum penalty for each offence, according to the sentencing Judge, was twenty years imprisonment and there is “a standard non-parole period of ten years’ imprisonment”.

16    But no conclusion is open that the Assistant Minister did not have regard to the remarks of the sentencing Judge. Those remarks were annexed to a submission prepared for the consideration of the Assistant Minister and that submission itself stated:

35.    When sentencing, the Judge in 2012 said that Mr RAIBEVU had a problem with alcohol which ‘reveals itself in his criminal record’ – referring to his prior offences of violence against his domestic partner – and said he had ‘come to appreciate the fact that he is incapable of consuming alcohol without terrible consequences’. However the Judge also noted that while Mr RAIBEVU had said he would never again drink, there was no evidence of him undergoing any courses for that purpose since coming into custody (Attachment B).

Attachment B was the sentencing remarks. The reasons of the Assistant Minister, it may be accepted, make no express reference to those parts of the sentencing remarks upon which Mr Raibevu now seeks to place reliance. Those reasons refer (at para [32]) to the sentences imposed and further state:

40.    I find that the sentences of imprisonment that Mr RAIBEVU has received are a further indication of the seriousness of his violent offending, in particular the sentences of nine and six years from 2012. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered that the court viewed the offending as very serious. I concur with that view.

17    But no inference is open that the Assistant Minister did not read and consider the sentencing remarks in their entirety, including those aspects upon which Mr Raibevu now seeks to place reliance. The sentencing remarks were the subject of submissions prepared for the Assistant Minister’s consideration and the summary of the offences committed by Mr Raibevu set forth in the reasons of the Assistant Minister would appear to have been taken substantially from those remarks.

18    Nor is it open to conclude that the Assistant Minister was not aware of or did not consider those other matters referred to in the Particulars to the first Ground of Review but not referred to explicitly in the reasons. It may be accepted, for example, that the reasons of the Assistant Minister do not expressly state at para [39] that his “convictions for violent offending” in 2004 led to the imposition of a good behaviour bond and not a term of imprisonment. The National Police Certificate, which was also before the Assistant Minister, set out the sentences imposed for each of Mr Raibevu’s offences. Even if it were to be assumed that the Assistant Minister was not aware of the penalty imposed in respect to the 2004 conviction, legal error would not necessarily be thereby established.

19    When considering the necessity to not only consider representations made by a visa holder but also the need to consider particular statements contained within those representations, Robertson J in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 relevantly concluded:

[56]    … While I accept that under s 501CA(4) representations as a whole constitute a mandatory relevant consideration, I do not accept that any particular statement in the representations should be so characterised.

And, when giving reasons for a decision, it is equally the case that a statement of reasons need not refer to every piece of evidence or every contention advanced by a claimant: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46], (2003) 236 FCR 593 at 604 per French, Sackville and Hely JJ. Similarly, in Parker v Minister for Immigration and Border Protection [2017] FCA 314 it was concluded that:

[32]    Just as it would be impermissible for the Minister to take an overly broad approach to the content of representations made and thereby fail to take into account the substance of representations that had been made, it is equally impermissible for a representation to be parsed and analysed by legal representatives who may thereafter be retained by the visa holder with a view to discerning what is perceived to be a separate claim that did not receive express consideration.

So, too, in the present case it is concluded that there was no imperative upon the Assistant Minister to make reference in his statement of reasons to every statement made within a document brought before him for his consideration. The absence (for example) of express reference to the good behaviour bond being imposed in respect to the 2004 conviction, accordingly, provides no reason to set aside the decision of the Assistant Minister.

20    There is, in short, no universal requirement imposed upon a Minister when providing reasons for a decision to refer to every individual statement which may be found in an annexure to a Departmental submission.

21    Nor is there any universal requirement that a Departmental submission to a Minister refer to every individual statement that may be discerned from the documents annexed to a submission. Any departmental submission must, of course, be “fair, accurate and adequate”: cf. Air Nelson Ltd v Minister of Transport [2008] NZCA 26 at [48], [2008] NZAR 139 at 151 per William Young P, O’Regan and Robertson JJ. The necessity for a Departmental submission to expressly bring to the attention of a Minister a particular matter raised in an annexure to the submission will depend upon the importance of that matter to the decision to be made. An inference that a matter of such importance raised for consideration in a Departmental submission may not have been considered by a Minister may arise if the Minister fails to address that matter in the reasons provided: cf. Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [69], (2001) 206 CLR 323 at 346 per McHugh, Gummow and Hayne JJ.

22    The particular comments of the sentencing Judge in the present proceeding, being the comments now sought to be relied upon by Mr Raibevu, are not considered to be such matters that a failure to refer to them in the reasons of the Assistant Minister expose legal error.

23    The conclusion reached by Collier J in Lyons was a conclusion necessarily reached by reference to the particular facts and circumstances then before the Court and self-evidently does not attempt to lay down any general principle applicable to the construction of all Ministerial reasons. The decision nevertheless serves as a useful reminder that reasons provided should be read in a context which recognises that the omission of references to some matters may evidence a failure on the part of a decision-maker to consider those matters. Such a failure has the potential to expose legal error. On the facts of the present case, however, it is the detailed reliance placed upon materials found within those sentencing remarks which supports the conclusion that consideration was in fact given to the entirety of the sentencing remarks and not merely those matters to which express reference is made in the reasons. To the extent that other matters were not referred to expressly in the reasons of the Assistant Minister in the present case – such as the penalty of a good behaviour bond being imposed for the 2004 conviction rather than a term of imprisonment – such matters did not required express reference in the reasons provided.

24    There is, accordingly, no substance in the first proposed Ground of Review.

Unreasonableness & an outcome that is not evident or transparent – Ground 2

25    The second proposed Ground of Review seeks to recast the argument sought to be advanced in the first Ground.

26    The same reasons as lead to the rejection of the first Ground also lead to the rejection of the second Ground. The process of reasoning of the Assistant Minister, and the weight he gave to particular considerations, adequately explain the conclusion reached. Albeit a conclusion with which Mr Raibevu disagrees, it cannot be said that it was a conclusion which was “unreasonable” or one which does not expose the process of reasoning in a “transparent” manner. Although different decision-makers may have weighed the matters under considerations in a different manner and reached a different outcome, the outcome in the present case was not one which no reasonable decision-maker could reach: cf. Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 to 37 per Brennan J. The decision in the present case cannot be characterised as a decision “which no rational or logical decision maker could arrive [at] on the same evidence”: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130], (2010) 240 CLR 611 at 647 to 648 per Crennan and Bell JJ.

27    The second Ground of Review is also not made out.

A failure to consider the risk to the community – Ground 3

28    The third Ground of Review sets forth three Particulars in support of an argument that the Assistant Minister did not “lawfully consider the protection of the Australia community in exercising his discretion”.

29    The difficulty with this third Ground is that the Assistant Minister did consider the risk to the Australian community.

30    The reasons of the Assistant Minister deal in some detail with the risk of Mr Raibevu reoffending. Those reasons thus state (in part) as follows:

Protecting the Australian Community

30.    In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the consideration of the protection of the Australian community, noting in particular Mr RAIBEVU’s claim he does not pose an unacceptable risk of reoffending and is rehabilitated. I considered the Government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens.

And, when considering the “[r]isk to the Australian community”, the reasons further state (in relevant part) as follows:

52.    Overall, I acknowledge that Mr RAIBEVU is remorseful for his actions and has made substantial changes to his life and outlook since being in prison, with the result that the chances of his reoffending are now much lower than before he was imprisoned. However, I retain some reservations about the risk of him offending, noting his history of other violence against women, his failure to take advantage of rehabilitative opportunities in the past and his as yet untested ability to refrain from alcohol when in the general community in circumstances where alcohol use is tied to his offending.

53.    I find that there is a risk that Mr RAIBEVU will reoffend. I consider that should Mr RAIBEVU reoffend in a similar manner, it could result in physical and/or psychological harm to members of the Australian community.

31    As to the first Particular, the Assistant Minister did consider the “likelihood or otherwise of [Mr Raibevu] re-offending” and concluded that there was “a risk” that he would reoffend (at para [53]). Any submission that the Assistant Minister did not consider the risk of reoffending is denied by reference to the reasons provided.

32    As to the second Particular, any assessment of risk involves a decision-maker reaching a qualitative judgment. Any assessment must address a series of facts – including the nature of the offence in question; the sentence in fact imposed and the reasons for that sentence; and steps taken by an individual to mitigate the prospect of reoffending. Different decision-makers may well reach different conclusions based upon the same materials. But the possibility of variance does not render an assessment one which is mere “supposition”.

33    On the facts of the present case, the Assistant Minister did consider the materials of relevance to an assessment of the risk of reoffending. The assessment made was one which was open to him on the facts.

34    The third Particular is somewhat elusive. Again the “evidence” sought to be referred to is not identified. Again, it has been assumed that the “evidence” referred to is to be found in those parts of the sentencing remarks of the District Court Judge which were presumably relied upon to justify the imposition of less than the maximum sentence. If that be correct, that submission has been considered and rejected when resolving the first proposed Ground of Review. If that not be correct, there is no other self-evident failure on the part of the Assistant Minister to consider evidence going to the risk of reoffending.

35    The third Ground is thus also without substance.

Unreasonableness – Ground 4

36    The final Ground of Review provides a number of Particulars in support of a contention that the decision of the Assistant Minister was “legally unreasonable”.

37    This final Ground contains many Particulars which have been relied upon in one or other of the earlier Grounds. The exceptions are those Particulars which focus upon:

    the delay in making a decision, given the sentence was imposed in respect to an offence committed in 2011;

    the differences between the offences committed in 2004 and 2008 and that committed in 2011;

    the ties Mr Raibevu has with his family and his church; and

    Mr Raibevu’s two Australian children.

But the focus upon these matters is again misplaced.

38    As to the first of these matters, it is “[t]he decision to cancel Mr Raibevu’s visa” which it is claimed was “delayed”– that being a decision made by the Delegate in February 2017 under s 501(3A) of the Migration Act and not by the Assistant Minister. There is no delay on the part of the Assistant Minister, other than the reasonable passage of time between the date of Delegate’s decision and the final resolution of the s 501CA(4) application in July 2018. The Delegate’s decision is not the decision the subject of the present proceeding. There is, in any event, no express legislative constraint upon the time at which the power conferred by s 501(3A) may be exercised, other than that the power must necessarily be exercised whilst the visa is still in force and whilst the visa holder is still “serving a sentence of imprisonment”: s 501(3A)(b). There is no requirement (for example) that the power conferred by s 501(3A) be exercised at the outset of a visa holder serving a term of imprisonment rather than towards the end of that term of imprisonment. The mere fact that a decision is made towards the conclusion of a term of imprisonment, without more, evidences no excess of power.

39    The differences between the offences in 2011 relating to aggravated sexual assault, for which Mr Raibevu was convicted in 2012, and those committed in 2004 and 2008 was the subject of express comment by the Assistant Minister. His reasons thus relevantly state:

39.    I note that Mr RAIBEVU has prior convictions for violent offending in 2004 (Common assault) and 2008 (Assault occasioning actual bodily harm – nine months imprisonment, suspended). These offences, while much less serious than his 2012 convictions, do further illustrate a tendency towards violence. I note that he has some other offences also, though I acknowledge that these consisted largely of traffic and/or driving matters for which he received dispositions of bonds and fines.

It was this paragraph which attracted the oral submission of Mr Raibevu as to the absence of express reference to the “violent offending” in 2004 attracting a good behaviour bond and the asserted failure to consider this “key evidence”. That submission has been rejected.

40    The ties which Mr Raibevu has with his family and the church were also the subject of express comment by the Assistant Minister. Mr Raibevu’s family was referred to at para [29] of the reasons and para [57] concludes with the statement that the Assistant Minister gave “primary consideration to the best interests of” his children. Mr Raibevu’s connection with his church was referred to at para [50] where the Assistant Minister records that “a representative of Hillsong church has offered support with reintegration into the community”.

41    Accordingly, the fourth Ground of Review is also without merit.

CONCLUSIONS

42    To the extent necessary, an extension of time should be granted.

43    The proceeding, however, should be dismissed. None of the Grounds of Review have merit.

44    Mr Raibevu’s visa was cancelled pursuant to s 501(3A) because he failed the “character test” by reason of his criminal convictions. The Assistant Minister was called upon to consider whether that original decision should be revoked and directed his attention to, as he was required to by s 501CA(4), whether there was “another reason why the original decision should be revoked”. He concluded on the materials before him that he was not “satisfied” that there was any other reason. In reaching that state of satisfaction no error was committed.

45    There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The Application for an Extension of Time is granted and time is extended up to 3 September 2018.

2.    The proceeding is dismissed.

3.    The Applicant is to pay the costs of the Respondent, either as agreed or assessed.

Associate:

Dated:    28 December 2018