FEDERAL COURT OF AUSTRALIA
Minister for Immigration and Border Protection v Eden [2016] FCAFC 28
ORDERS
MINISTER FOR IMMIGRATION AND BORDER PROTECTION Appellant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
2. The orders of the primary judge be set aside and, in lieu thereof, the respondent’s application for judicial review be dismissed with costs.
3. The respondent pay the appellant’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
1 In May 2011, the appellant, Mr Mas Eden, pleaded guilty to a charge that he sexually assaulted a woman who was a passenger in a taxi that he was driving. A Queensland District Court judge convicted Mr Eden and sentenced him to twelve months imprisonment, fully suspended. Mr Eden is a citizen of New Zealand, but has resided in Australia for a number of years pursuant to visas granted to him under the Migration Act 1958 (Cth) (the Act). Mr Eden’s right to reside in Australia effectively came to an end when, almost four years after his conviction and sentence, the then Assistant Minister for Immigration and Border Protection (Minister) cancelled his visa on character grounds pursuant to s 501(2) of the Act. The decision to cancel Mr Eden’s visa arose from, and was based on, his conviction and sentence for the sexual assault.
2 Mr Eden successfully challenged the Minister’s decision to cancel his visa in judicial review proceedings commenced in this Court. In quashing the Minister’s decision, the primary judge concluded that, having regard to the objective seriousness of Mr Eden’s offence, and the delay involved in making the decision, the Minister’s decision was disproportionate and unreasonable; the Minister had “taken a sledgehammer to crack a nut”. The decision was therefore beyond power.
3 The Minister appealed the decision of the primary judge.
4 The issues raised by this appeal revolve around two central questions. First, in quashing the Minister’s decision on the basis of jurisdictional error, did the primary judge correctly apply the principles relevant to determining whether a decision is “legally unreasonable” and therefore beyond power? Or did his Honour simply remake the decision on the basis of his own view of what was reasonable? Second, if the primary judge did apply the correct principles, was he correct to find that the Minister’s decision was legally unreasonable? Was it open to the primary judge to conclude, in effect, that the objective facts and circumstances of Mr Eden’s case were such that the decision to cancel Mr Eden’s visa was outside the range of legally permissible and justifiable outcomes given the subject matter, scope and purpose of the cancellation power in s 501(2) of the Act?
BACKGROUND FACTS
5 Mr Eden was born in Iran, but is a citizen of New Zealand. He travelled to Australia in October 2007 and has effectively resided here since that time. The visa most recently granted to him permitted him to remain in Australia so long as he continued to be a New Zealand citizen. In 2011, Mr Eden was joined in Australia by his wife and his son who, at that time, was about a year old. On 16 May 2011, in the Queensland District Court in Brisbane, Mr Eden pleaded guilty to one count of sexual assault. That offence was committed on 5 December 2009, before Mr Eden’s wife and child had arrived in Australia. By the time of his plea, Mr Eden’s wife and child had joined him. Mr Eden was convicted and sentenced to imprisonment for twelve months, but the whole of that period of imprisonment was suspended. An order was also made requiring Mr Eden to be of good behaviour for two years, failing which he was liable to serve the suspended period of imprisonment.
6 The nature of Mr Eden’s offending conduct is best described by reproducing the sentencing judge’s brief remarks on sentence.
On December 5, 2009, you were working as a taxi driver with B & W Cabs. The complainant, a 20 year old woman, had walked from the Valley to Kangaroo Point on her way home to Hawthorne. She’d been with friends in the Valley that night and had a few drinks but was unable to catch a taxi in the Valley so she started walking.
You picked her up in your taxi at Kangaroo Point. You were 45 years old at the time. As you drove towards Hawthorne, you groped the complainant. You groped her breast under her bra and you also rubbed her groin under her underwear. You did that a couple of times. You thought that the girl was consenting and you were hoping for consensual sex. The complainant, however, did not consent but did not ever say no to you although she did ask you to stop the car at various places because she told that that’s where she lived [sic].
I’ve seen the stills of the video footage taken in the car. I think they are equivocal. They do not, to me, indicate that your assault on a female complainant was consensual or non-consensual but I accept from your plea that you accept that your understanding that the complainant passenger was consenting to sexual activity with you was one which was not reasonable.
You are a refugee from Iran and you now work as a truck driver. You voluntarily left taxi driving after this incident. You have a wife and a young child who are at Court today to support you. It is encouraging for you that your wife is standing by you, having regard to what occurred on the day concerned.
A victim impact statement from the complainant was tendered. It satisfies me that your actions have had a traumatic effect upon her and that she is now very wary of catching taxis.
Actions can often be misinterpreted and I think this is probably a case like that. When you started fondling the girl, I think you got the impression that she was happy for you to do that but that was not so.
I’ve considered all of the submissions which were made, both by Mr Bain for the Director of Public Prosecutions and Mr Wilson on your behalf and also, of course, your plea of guilty. I note that you have, through your counsel, apologised to the victim for your actions. I’m not sure if the DPP can convey that to the complainant, but if that is possible I think that that would be appropriate.
7 It is apparent that Mr Eden was sentenced on the basis that he honestly believed that the victim consented to sexual activity, but that his belief was not objectively reasonable.
8 Nothing of relevance appears to have occurred between May 2011 and early 2014 insofar as Mr Eden was concerned. The period of Mr Eden’s good behaviour order passed without apparent incident. Mr Eden presumably got on with his life in Australia with his wife and child. In early January 2014, Mr Eden returned to Australia after a brief overseas trip. On his incoming passenger card he declared that he had a criminal conviction. That event is noted only because it would appear that this declaration was the catalyst, albeit an apparently slow one, for the events that followed.
9 At some time in early 2014, officers in the Minister’s department who had responsibility for visa cancellations became aware of Mr Eden’s conviction and sentence. On 7 November 2014, ten months after the declaration by Mr Eden on his incoming passenger card, Mr Eden was sent a notice advising him of the Minister’s intention to consider the cancellation of his visa based on his conviction and sentence for sexual assault. Mr Eden responded to that notice within a month. Representations were made on Mr Eden’s behalf on 1 December 2014 and then again on 5 January 2015.
10 At some stage in the period between 5 January 2015 and 17 April 2015, a submission to the Minister in relation to the cancellation of Mr Eden’s visa was prepared by an officer of the Minister’s department. The submission itself is undated. The submission contained a lengthy (16 page) “issues paper”, together with a number of attachments. The attachments included, amongst other things, the sentencing remarks of the sentencing judge and the representations made on Mr Eden’s behalf.
11 It is unclear when the submission was sent to or received by the Minister. It must have been before 17 April 2015, however, because on that day the Minister signed the submission to denote that she had decided to cancel Mr Eden’s visa under s 501(2) of the Act. On the same day, the Minister signed a statement of reasons for the cancellation decision (Reasons).
12 Mr Eden was notified of the Minister’s decision to cancel his visa by letter dated 1 May 2015.
THE POWER TO CANCEL A VISA UNDER S 501(2) OF THE ACT
13 Section 501(2) of the Act provides as follows:
…
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
14 This Court has recently given detailed consideration to the Minister’s power to cancel a visa under s 501(2) of the Act. In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 (Stretton), Griffiths J (with whom Allsop CJ and Wigney J agreed) noted a number of relevant features of the cancellation power under s 501(2) of the Act. Given the issues that arise on this appeal, it is unnecessary to rehearse Griffiths J’s analysis in any great detail. Suffice it to say that his Honour referred to five particular features of s 501(2).
15 First, the Minister’s power to cancel a visa is only enlivened if the Minister reasonably suspects that the visa-holder does not pass the character test (as defined in s 501(6) of the Act) and the visa-holder does not satisfy the Minister that he or she satisfies the character test. There was and is no question that the discretion was enlivened in Mr Eden’s case. Relevantly, a person does not pass the character test if the person has been sentenced to a term of imprisonment of twelve months or more. In his submissions before this Court, however, Mr Eden pointed out that the sentence imposed on him was the minimum sentence that would enliven the discretion. That point was made in the context of Mr Eden’s submissions concerning the objective seriousness of his offence, a subject which will be addressed in more detail later.
16 Second, the Minister’s discretion, once enlivened, is substantially unfettered in the sense that there is no list of factors which the Minister must take into account. It does not follow, however, that the power is without limitation. The Minister may not, for example, act arbitrarily or capriciously. Nor does it follow that the Minister is not required to take certain considerations into account having regard to the subject matter, scope or purpose of the Act.
17 Mr Eden did not contend that the Minister acted arbitrarily or capriciously. Nor did he contend that the Minister failed to consider any matter that she was required to take into account. It was common ground between the parties that the Minister is required to consider the protection of the Australian community and any risk of harm posed by the continued presence of the visa holder in Australia: cf. Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367. It was also common ground that in Mr Eden’s case the Minister had regard to that consideration. Given the issues raised on this appeal, it is unnecessary to consider whether the Minister is bound to have regard to any other matters and, if so, what they are.
18 Third, consistently with Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li), the Minister’s discretion to cancel a visa under s 501(2) of the Act must be exercised reasonably. The content of that requirement, or more particularly what constitutes vitiating or legal unreasonableness, which is the issue that lies at the heart of this appeal, is considered in detail later.
19 Fourth, there are a number of indicators that suggest that the Minister’s discretion under s 501(2) is, and is intended to be, broad. That is a relevant consideration in assessing whether a decision under s 501(2) of the Act is unreasonable in a legal sense. The indicators include, but are not necessarily limited to, the following: the absence of an express list of considerations to be taken into account; the broad statement of the object of the Act in s 4(1) as being to “regulate, in the national interest, the coming into and presence in, Australia of non-citizens”; the fact that the discretion is conferred upon the Minister who holds political office and is accountable to Parliament; the fact that a decision under s 501(2) which is made by the Minister personally is not subject to merits review; and the fact that the Minister is obliged by s 501G(1)(e) of the Act to provide a written statement of reasons.
20 Fifth, the power to cancel a visa is substantive, not procedural, in nature.
THE CANCELLATION DECISON
21 As already indicated, there was no issue that Mr Eden did not pass the character test and that the s 501(2) discretion to cancel his visa was enlivened.
22 In relation to the exercise of the discretion, the Reasons record that the Minister had assessed and had regard to the information in the issues paper and its attachments. There is no basis for finding otherwise. Nor did Mr Eden suggest that there was.
23 The Reasons record that, in exercising the discretion to cancel Mr Eden’s visa, the Minister took into account various factors that she considered weighed against and in favour of cancelling Mr Eden’s visa. Broadly speaking, the factors that the Minister considered weighed in favour of cancellation were the nature and seriousness of Mr Eden’s criminal offending, the risks to the Australian community and, it appears, the expectations of the Australian community. The factors that weighed against the cancellation of Mr Eden’s visa included the best interest of Mr Eden’s son, who was four years old at the time, Mr Eden’s ties to Australia, the impact on Mr Eden’s business and the impediments or hardship Mr Eden might face if he was required to leave Australia and return to New Zealand.
24 The Reasons indicate that the weightiest considerations for the Minister were the seriousness of the criminal conduct engaged in by Mr Eden and the risk to the Australian community. In relation to the former, the Reasons record the Minister’s view that “sexually based offences are viewed very seriously” by the Australian community (Reasons at [9]). Perhaps more significantly, the Reasons record that the Minister regarded Mr Eden’s specific offending as “very serious” (Reasons at [13]). That view appears to have been based on “court transcripts” (apparently a reference to the sentencing judge’s remarks on sentence) and the victim’s statement (as referred to in the remarks on sentence) that Mr Eden’s conduct had a traumatic effect on her (Reasons at [11]-[12]). The Minister’s view also appears to have been based on the sentence imposed on Mr Eden. In relation to that matter, the Reasons record as follows (at [14]-[15]):
The seriousness with which a community views offences of a sexual nature can also be reflected in the penalties imposed by the criminal justice system.
Whilst the custodial sentence of 12 months imprisonment may be at the lower end of the sentencing scale for such offences as argued by Mr EDEN’s representative, I consider that a disposition of any period of imprisonment is the last resort in the hierarchy of penalties available and the penalty imposed in Mr EDEN’s case is indicative of the seriousness of his offending.
25 In relation to the risk to the Australian community, the Reasons record that the Minister took into account the fact that if Mr Eden committed further offences of a sexual nature, “the impact upon the victim may be significant resulting in psychological and emotional harm” (Reasons at [21]). On the other hand, the Minister accepted that the risk of Mr Eden re-offending was low. In that regard, the Minister accepted that Mr Eden had shown remorse and insight into his offending, that he had not breached the good behaviour orders, that he had engaged in no further criminal conduct since 2009, that Mr Eden had stable accommodation and employment and a supportive family network and that he no longer worked as a taxi driver.
26 The Minister’s conclusion in relation to risk to the Australian community was expressed in the following terms (at [26]):
In view of the available information, I consider that these aforementioned factors are likely to reduce Mr EDEN’s risk of re-offending. However, having regard to Mr EDEN’s criminal record which contains a sexual offence, I find that Mr EDEN presents an ongoing risk of re-offending, albeit a low risk, and that if he offends in a similar manner the harm would be significant and may result in emotional and psychological injuries to a member of the Australian community.
27 It is unnecessary, for present purposes, to refer in any detail to the Minister’s findings concerning the matters that weighed against cancellation, including the best interests of Mr Eden’s child, ties to Australia and the hardship that Mr Eden might face if he was forced to return to New Zealand. The Minister’s findings in relation to those matters are referred to later in the context of the primary judge’s reasons.
28 The Minister’s decision to cancel Mr Eden’s visa ultimately turned on the Minister’s conclusion that the risk to the Australian community of permitting Mr Eden to continue to reside in Australia outweighed the competing considerations. The Minister’s conclusion was expressed in the following terms (at [51]-[56]):
51. Mr EDEN has committed a serious crime that of Sexual Assault, which is of a sexual nature, and Mr EDEN should expect to forfeit that privilege of staying in Australia. Mr EDEN’s offending is contrary to the expectation of the Australian community that non-citizens respect and abide by Australian law. The community expects that a non-citizen who has committed a serious offence should generally expect to forfeit the privilege of remaining in Australia
52. I find that the Australian community could be exposed to great harm should Mr EDEN reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr EDEN and the Australian community should not tolerate any further risk of harm.
53. I find the above consideration outweighed the countervailing considerations in Mr EDEN’s case including the best interests of the child, his employment and social/family ties to Australia, and that visa cancellation will cause some emotional and financial hardship to his family, especially to the wellbeing of his son.
54. I have also considered the length of time Mr EDEN has made a positive contribution to the Australian community and the consequences of my decision for minor children and other family members.
55. The Australian community has a low tolerance for any criminal or other serious conduct by non-citizens who have lived in Australia for a short period of time, and who commence offending soon after arriving. Mr EDEN has lived in Australia for a relatively short period, namely seven years. I note he committed the sexual crime some two years after he commenced residence in this country, which in my view is after a relatively short duration of residence in Australia.
56. In reaching my decision I concluded that Mr EDEN represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.
THE JUDGMENT OF THE PRIMARY JUDGE
29 Mr Eden’s sole ground for reviewing the Minister’s cancellation decision was that there was a jurisdictional error resulting from the unreasonable exercise of the Minister’s discretion.
30 It would appear that the primary judge was aware of the constraints of this ground of judicial review. His Honour referred (at Judgment [9]) to two “overarching principles” applicable to the judicial review of discretionary powers. The first principle was that, in considering such a ground, the Court is concerned with the legality of the decision under review, not its merits. His Honour cited, in relation to that principle, the well-known decisions in Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 and Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24. The second principle was that where reasons for the decision are given, those reasons must never be read critically with an eye for error. His Honour cited, in relation to that principle, the equally well-known decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
31 Later (at Judgment [33]), the primary judge also referred to the observation of Gageler J in Li at [113] concerning the stringency of the test for, and rarity of judicial determination of, unreasonableness of the type referred to by Lord Greene in Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury). The test for so-called Wednesbury unreasonableness is that the decision is so unreasonable that no decision-maker could have made it. His Honour noted, however, that it was made clear in Li that the boundaries of legal unreasonableness are not defined by, or confined to, Wednesbury unreasonableness.
32 Despite the constraints of, and the strictness of the test for, judicial review on the basis of unreasonableness, the primary judge found that Mr Eden had made good his case that the Minister’s decision was unreasonable. The basis of that conclusion was summarised in the following terms in the penultimate paragraph (Judgment [34]) of his Honour’s judgment:
In this particular case, when one has regard to the objective seriousness of the offence, to the delay and to the competing considerations (highlighted above), one of which the Minister regarded as primary, I am driven to the conclusion that the outcome is unreasonable on just the basis described in the joint judgment in Li. I reach that conclusion without exploring proportionality in any way as a replacement for unreasonableness as explained in the joint judgment. Another way, though, of describing the outcome is to adopt the same language that commended itself to French CJ in Li. The Minister has, with respect, taken a sledgehammer to crack a nut.
33 Three points should be noted in relation to the primary judge’s conclusion that the “outcome” of the Minister’s decision was unreasonable.
34 The first point is that his Honour’s reference to the “basis described in the joint judgment in Li” would appear to be a reference to 367[76] of the judgment of Hayne, Kiefel and Bell JJ in Li, which was extracted earlier in his Honour’s judgment, in which their Honours state:
As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. (footnotes omitted)
35 Thus, it would appear that one basis for the primary judge’s conclusion would appear to have been that the outcome of the Minister’s decision, the cancellation of Mr Eden’s visa, was “unreasonable or plainly unjust” or lacked an “evident and intelligible justification”.
36 The second point is that the primary judge’s adoption of the expression “sledgehammer to crack a nut” was taken from the judgment of French CJ in Li at [30], which includes the following statement of principle:
A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. It is not necessary for present purposes to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts. Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves. That approach is an application of the principles discussed above and within the limitations they would impose on curial review of administrative discretions. (footnotes omitted)
37 Thus, it would appear that another basis for the primary judge’s conclusion that the Minister’s decision was unreasonable was that, in his Honour’s view, the cancellation of Mr Eden’s visa was a disproportionate exercise of the Minister’s discretion, in the sense that it exceeded what, on any view, was necessary for the purposes it served.
38 The third point that is revealed by the primary judge’s conclusion (at Judgment [34]) is that there were three particular matters that led his Honour to find that the Minister’s decision was unreasonable on the basis that it was “unreasonable or plainly unjust” or a disproportionate exercise of the cancellation power. Those matters were: first, the objective seriousness of the offence; second, delay; and third, the “competing considerations”.
39 In relation to the first of these matters, the objective seriousness of Mr Eden’s offence, the primary judge concluded, in short, that “[o]bjectively, and it is necessary to emphasise that, this was not a very serious offence” (Judgment at [18]). His Honour emphasised the word “objectively”, it seems, to contrast this conclusion from what his Honour characterised as the Minister’s “subjective view” (see Judgment at [13]) concerning the seriousness of the offence. The primary judge appears also to have formed the view that, in reaching this subjective view, the Minister was effectively misled by the author of the submission and issues paper who did not “observe objective and dispassionate detachment” (see Judgment at [13]).
40 The primary judge’s conclusion that Mr Eden’s offence was not objectively very serious appears to have been based on two matters: first, “the conduct itself” (which may be taken to mean Mr Eden’s conduct); and second, “the approach to that conduct” by the sentencing judge (see Judgment at [14]). As for “the conduct itself”, it is not entirely clear what aspect of Mr Eden’s conduct led the primary judge to conclude that the offence was not very serious. It would appear, however, that his Honour gave considerable weight to the sentencing judge’s finding that the video footage of the offending exchange between Mr Eden and the victim was “equivocal” and that Mr Eden had “probably” misinterpreted the victim’s actions (Judgment at [17]). Elsewhere in the judgment, however, his Honour noted that there was a “heinous” quality to Mr Eden’s conduct (Judgment at [1] and [17]).
41 As for the approach of the sentencing judge, his Honour concluded that the sentence imposed was “eloquent” in demonstrating that Mr Eden’s offence was not very serious (see Judgment at [18]). His Honour was probably referring here to the fact that Mr Eden’s sentence of imprisonment was wholly suspended.
42 In relation to the second matter that founded the finding of unreasonableness, delay, the primary judge’s findings and reasoning is spelt out in unequivocal terms (at Judgment [29]):
Delay, if it is lengthy, in the circumstances of a particular case, has in the United Kingdom been regarded as a basis upon which a ministerial decision can be regarded as unreasonable. Thus in The Queen v Secretary of State for the Home Department ex parte Handscombe (1987) 86 Cr. App. R. 59 [sic] and in Doody v Secretary of State for the Home Department [1994] 1 AC 531 in Lord Mustill’s view, a lengthy delay before the Home Secretary’s review of a life prisoner’s sentence was held to be unreasonable and “excessive beyond belief”. Here, for the entirety of the period during Mr Eden’s suspension of sentence, he received not a hint from any officer of the Commonwealth that the Minister was even likely to consider his case as one for visa cancellation and deportation. The period is even longer if one has regard to the time which elapsed after the offending conduct. Even after the District Court outcome was finally, for reasons that were not stated, drawn to the department’s attention by the Australian Federal Police, no particular urgency attended the sequel to the provision of that information. Over all of that time, a family relationship with a young child was developing. Lethargy on the part of the Minister and her officers and other officers of the Commonwealth, who, inferentially, were charged with drawing court outcomes to the department’s attention, allowed that to occur. That, in itself, may well be a factor which warrants a conclusion that this particular outcome was oppressive and unreasonable.
43 It will be necessary to say something later about his Honour’s reliance on the English decisions in the R v Secretary of State for the Home Department, ex parte Handscomb (1988) 86 Cr. App. R. 59 (Handscomb) and R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 (Doody). Suffice it to say at this stage that the observations concerning delay in those cases were made in an entirely different statutory and legal context to this matter.
44 The third matter referred to by the primary judge (Judgment at [34]) as supporting the conclusion that the outcome was unreasonable, the “competing considerations”, was a reference to Mr Eden’s personal circumstances and the hardship that he and his family would suffer if Mr Eden’s visa was cancelled. The primary judge summarised those considerations as follows (at Judgment [22]-[23]):
The Minister also found that Mr Eden provided the sole means by which support was given to his wife and their child. She further found that Mr Eden was committed to being a positive and supportive role model for his son. Unsurprisingly, the Minister also found that deportation would cause not just emotional but also financial distress to the child and that it would disrupt the relationship between father and son. The Minister further found, and indeed classed it as a primary consideration, that it was in the best interests of that child for Mr Eden to remain in Australia and for her not to cancel his visa.
Other findings made by the Minister in her reasons were that, during Mr Eden’s over seven year period of residence in Australia (he first arrived in 2007), he had been actively employed and contributed to the Australian community by paying taxes. She further found that, over that time, Mr Eden had developed, both through family, business, property ownership and payment of taxes, ties to the Australian community. The Minister had before her, and did not gainsay, a character reference which attested to Mr Eden’s being a dedicated and loving family man who had a good work ethic. She accepted that deportation would necessarily terminate Mr Eden’s income-earning business in Australia.
45 It is to be noted that the primary judge did not expressly find that the Minister failed to give sufficient weight to the competing considerations. On one view, however, that would appear to be implicit in his Honour’s conclusion that the cancellation outcome was unreasonable.
APPEAL GROUNDS AND SUBMISSIONS
46 The Minister’s Notice of Appeal contained the following six grounds of appeal:
1. The Hon Justice Logan erred in finding (Judgment at [18]) that it was not reasonably open to the Assistant Minister to form the view that the offence committed by the Respondent, on 5 December 2009, was a very serious offence.
2. The Hon Justice Logan erred in holding (Judgment at [18]) that the Assistant Minister was bound to consider the seriousness of the respondent’s offending behaviour objectively by reference to the class of offence committed. His Honour should have held that the Assistant Minister was not bound in exercising her discretion to undertake a comparison between the respondent’s offending behaviour and other offences within the same class of offence.
3. The Hon Justice Logan erred in holding (Judgment at [28]) that the absence of irrationality in the Assistant Minister’s decision did not mean that it was not possible to make out a jurisdictional error of unreasonableness.
4. The Hon Justice Logan erred in holding (Judgment at [29]) that delay in the making of the decision to cancel the Respondent’s visa after the date of conviction, on 16 May 2011, was a factor which warranted a conclusion that the decision to cancel was oppressive and unreasonable, in circumstances where the conviction was not brought to the attention of the Department of Immigration and Border Protection until 10 January 2014; was the subject of a Notice of Intention to Consider Cancellation of the visa dated 7 November 2014, responded to by the Respondent’s representative on 1 December 2014; was the subject of a request for further information dated 15 December 2014, which further information was supplied by the Respondent’s representative on 5 January 2015; was the subject of an invitation to respond to further material dated 30 January 2015 and a further request for information dated 13 March 2015; and was the subject of submission to the Assistant Minister in or about April 2015 .
5. The Hon Justice Logan erred (Judgment at [18], & [34]) in evaluating the reasonableness of the Assistant Minister's decision by reference to his Honour's "objective" view of the seriousness of the respondent’s offending on the scale of offending within the class of offence committed. His Honour should have assessed the reasonableness of the Minister’s decision by reference to the Minister’s own characterisation of the offending behaviour as “very serious”, in particular in the light [sic] of the following facts:
(a) the offending conduct, correctly described by His Honour at [1] as “heinous,” was committed two years after the Respondent had arrived in Australia;
(b) involved a taxi driver sexually assaulting an intoxicated young female passenger;
(c) involved an ongoing, albeit low, risk of re-offending;
(d) [i]n the event that the Respondent re-offended the consequences would cause significant harm and may result in emotional and psychological injuries to a member of the Australian community;
which characterisation was reasonably open to the Minister.
6. The Hon Justice Logan erred (Judgment at [34]) in finding that the Minister's decision was affected by jurisdictional error on the basis of unreasonableness on the basis described in the joint judgement [sic] in the High Court in Minister for Immigration and Citizenship v Li, or at all.
47 The Minister’s submissions refined these six appeal grounds into three contentions.
48 The first contention was that the primary judge erred in substituting his own assessment of the objective seriousness of the offence for the Minister’s assessment. The Minister submitted that the evaluation of the seriousness of the offence was a matter for the Minister. The primary judge’s disagreement with the Minister’s assessment and finding in that regard had no legal consequences unless the primary judge found that the Minister’s finding was not open on the facts and material before her. It was submitted that the primary judge made no such finding. In substituting his finding concerning the seriousness of the offence for that of the Minister, the primary judge was said to have impermissibly traversed the merits of the Minister’s decision.
49 In response to that contention, Mr Eden submitted that the Minister’s view that Mr Eden’s offence was “very serious” was not open when proper regard is given to the actual conduct engaged in by Mr Eden and the sentence imposed by the sentencing judge. In relation to Mr Eden’s conduct, the critical consideration was that he acted upon a mistaken belief that the victim consented to his advances. The sentence imposed by the sentencing judge, which was a fully suspended sentence, reflected this important consideration and demonstrated that the offence was not properly characterised as very serious. The primary judge’s finding that the offence was not objectively very serious amounted, in Mr Eden’s submission, to a finding that the Minister’s view was not open. It did not simply amount to the primary judge substituting his view for the Minister’s view.
50 The Minister’s second contention related to the primary judge’s findings in relation to delay. The Minister submitted that delay was a matter that the Minister was not bound to have regard to. It followed, in the Minister’s submission, that the primary judge could not, or should not, have had regard to delay in finding that the decision was legally unreasonable.
51 Mr Eden’s submission in relation to delay was that the passage of time from his conviction to the cancellation decision was a relevant matter and that it was open to the primary judge to consider the delay in determining whether the Minister’s decision was legally unreasonable. It was part of the factual matrix which, when considered together with the other facts, meant that the Minister’s decision was outside the range. During the period between conviction and cancellation Mr Eden engaged in no more offending behaviour. That was relevant to assessing the likelihood of Mr Eden reoffending and therefore the risk to the Australian community should Mr Eden be permitted to stay in Australia. Mr Eden’s family relationships and connections with Australia also continued to develop during that period. That was a relevant competing or countervailing consideration.
52 The Minister’s third contention was that the primary judge erred by approaching the determination of legal unreasonableness as if it was a matter for his Honour to determine what was or what was not reasonable, rather than determining whether or not the decision was within the ambit of legitimate decision making having regard to the scope and purpose of s 501(2) of the Act. In short, it was submitted that the primary judge essentially remade the decision according to what he considered to be a reasonable outcome without considering whether the Minister’s decision to the contrary was a lawful exercise of power.
53 Mr Eden’s response to that submission was that the primary judge did not simply substitute his view of how the discretion should have been exercised for that of the Minister. Rather, his Honour concluded that, having regard to the objective facts, the Minister’s decision was outside the range of proportionate responses that were available to her. In Mr Eden’s submission, no reasonable Minister could have concluded that Mr Eden’s visa should have been cancelled on the basis of the objective facts. The Minister’s decision was therefore “outside the range” and the primary judge was correct in effectively so concluding.
“LEGAL UNREASONABLENESS” – RELEVANT PRINCIPLES
54 Before addressing the specific appeal grounds and contentions, it is necessary to say something briefly concerning the relevant principles in relation to “legal unreasonableness” as a ground of judicial review. It is possible to be brief for two reasons.
55 First, there was no substantial disagreement between the parties in relation to the relevant principles. The main points of contention involved whether the primary judge applied, or correctly applied, those principles.
56 Second, the relevant principles were the subject of detailed analysis, in a relevantly similar context, in the recent decision of this Court in Stretton. Like this matter, Stretton concerned the question whether the Minister’s exercise of power under s 501(2) of the Act to cancel a visa was legally unreasonable. In that context, both the judgments of Allsop CJ and Griffiths J (with whom Wigney J agreed) distilled a number of statements of principle concerning legal unreasonableness derived, for the most part, from the decision of the High Court in Li and the decision of this Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (Singh).
57 For the purposes of this appeal, it is sufficient to reduce the relevant principles into a few short propositions. This short summary is not intended to supplant or derogate from the detailed analysis and explication of the relevant principles in Li, Singh and Stretton.
58 First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making: Li at 350[26] and 351[29] (French CJ), 362[63] (Hayne, Kiefel and Bell JJ) and 370[88] (Gageler J); Singh at 445[43]; Stretton at [4] (Allsop CJ) and [53] (Griffiths J).
59 Second, the Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory (Li at 363[66]). It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker: Li at 363[66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 90 ALJR 197 at 203[23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ).
60 Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an “outcome focused” conclusion without any specific jurisdictional error being identified: Li at 350[27]-351[28] (French CJ), [72] (Hayne, Kiefel and Bell JJ); Singh at [44]; Stretton at [6] (Allsop CJ).
61 This appeal is primarily concerned with whether the outcome of the Minister’s exercise of power was legally unreasonable. That said, some of the primary judge’s reasons for concluding that the decision was unreasonable, and some of the appeal grounds and submissions, are directed at the Minister’s reasons and alleged errors in the decision-making process.
62 Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion: Li at 351[29] (French CJ), 363[66] (Hayne, Kiefel and Bell JJ). Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness: Li at 363[66] (Hayne, Kiefel and Bell JJ); Stretton at [7] (Allsop CJ). Such a decision falls within the range of possible lawful outcomes of the exercise of the power: Li at 375[105] (Gageler J); Stretton at [11] (Allsop CJ).
63 Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute: Li at 349[24] (French CJ), 363[67]-364[67] (Hayne, Kiefel and Bell JJ); Stretton at [55] and [62] (Griffiths J). The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Singh at 445[42].
64 Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable: Singh at 446[45]-447[47]. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: Singh at [47]. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes: Li at 367[76] (Hayne, Kiefel and Bell JJ); Stretton at [13] (Allsop CJ).
65 Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at 445[42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
THE PRIMARY JUDGE’S FINDING CONCERNING THE OBJECTIVE SERIOUSNESS OF MR EDEN’S OFFENCE (APPEAL GROUNDS 1, 2 AND 5)
66 Whilst the primary judge’s conclusion concerning the unreasonableness of the Minister’s decision was primarily outcome focused, there was one aspect of the Minister’s reasons that the primary judge apparently found to be erroneous. That reasoning concerned the seriousness of Mr Eden’s offence. The Reasons record that the Minister regarded Mr Eden’s offending as “very serious” (Reasons at [13]). The primary judge found that the Minister was “perfectly entitled…to form that subjective view” (Judgment at [13]). His Honour concluded, however, that the offence was not objectively serious.
67 There are a number of difficulties with the primary judge’s reasoning and conclusion concerning this aspect of the Minister’s decision. Those difficulties tend to reveal that the primary judge misapplied the principles concerning legal unreasonableness. They also undermine his Honour’s ultimate conclusion that the Minister’s decision was legally unreasonable.
68 The first difficulty is that it is somewhat unclear whether the primary judge found that the Minister’s view that Mr Eden’s offence was very serious was not a view which was open to the Minister on the objective facts. His Honour did not state, in terms, that the Minister’s view was not one that was open on the facts. Indeed, as already indicated, his Honour noted that the Minister was “perfectly entitled in the administration of the Act” to form the “subjective view” that sexually based offences, as Mr Eden’s offence was, were “viewed very seriously” (Judgment at [13]). That might tend to suggest that the primary judge accepted that the Minister’s view of the seriousness of Mr Eden’s offence was a view which was open to her.
69 The difficulty is that, if the Minister’s view was open on the facts, it was not for the primary judge to effectively overturn that finding, and replace it with his own finding, in evaluating the reasonableness of the Minister’s decision. It is difficult to see how the Minister’s decision could be said to be legally unreasonable if it was based on findings, including essentially subjective findings concerning the seriousness of offending behaviour, which were open on the facts and therefore could not be described as irrational or illogical.
70 On balance, however, it would seem that his Honour did effectively find that the Minister’s view that Mr Eden’s offence was a “very serious” offence was not a finding that was open on the objective facts. His Honour concluded, in effect, that the objective facts compelled a conclusion that the offence was not very serious. His Honour’s conclusion in that regard was based on the “eloquence” of the sentence imposed on Mr Eden by the sentencing judge (Judgment at [14] and [18]) and, it would appear, on the fact that Mr Eden was sentenced on the basis that he had misinterpreted the victim’s actions (Judgment at [14], [17] and [18]). His Honour’s reference to the “eloquence” of the sentence was presumably a reference to the fact that Mr Eden’s sentence of imprisonment was fully suspended.
71 As for the Minister’s “subjective view”, his Honour suggested that the Minister may have been “encouraged in the formation of that view” by the submission or issues paper, which his Honour found “lacked objective and dispassionate detachment” (Judgment at [13]). Whilst the basis of the primary judge’s finding in that respect is somewhat unclear, it would appear that his Honour considered that the “eloquence” of the sentence imposed on Mr Eden was “very probably… lost” on the author of the issues paper (Judgment at [18]).
72 If it is accepted that the primary judge did find that the Minister’s view of the seriousness of Mr Eden’s offence was not open on the objective facts, a more fundamental difficulty arises in relation to the primary judge’s findings. That difficulty is that there would appear to be no sound basis for the primary judge’s criticisms of the Minister’s findings in relation to the seriousness of Mr Eden’s offending. More significantly, and contrary to Mr Eden’s submissions, there would appear to be no sound basis for the primary judge’s conclusion that it was not open to the Minister to find that Mr Eden’s offence was very serious.
73 As for the apparent suggestion that, by reason of the content of the issues paper or otherwise, the Minister failed to have regard to, or failed to give adequate weight to, the fact that Mr Eden’s sentence of imprisonment was fully suspended, it is clear that the Minister had the sentencing judge’s remarks on sentence before her. The issues paper also clearly indicated that Mr Eden’s sentence was fully suspended. A sentence of imprisonment which is fully suspended is nonetheless a sentence of imprisonment and is regarded as a “very serious form of punishment”: Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 at 115[4] (Rares J, with whom Moore J agreed). It is “treated as the penultimate punishment in the hierarchy of sentencing options provided, just slightly lower in severity than the imposition of imprisonment to be immediately served”: Dinsdale v The Queen (2000) 202 CLR 321 at [77]; see also R v Zamagias [2002] NSWCCA 17 at [22]-[31] (Howie J, with whom Hodgson JA and Levine J agreed). Contrary to the apparent findings of the primary judge, it was open to the Minister to conclude, as she did (at Reasons [15], extracted earlier) that the sentence imposed on Mr Eden was “indicative of the seriousness of his offending”. The fact that the sentence was wholly suspended did not mean that the offence was not very serious.
74 Nor is there any basis for Mr Eden’s contention that, in assessing the seriousness of the offence, the Minister was obliged to, but did not, consider Mr Eden’s actual conduct. That conduct included, in Mr Eden’s submission, the fact that he had mistakenly believed, albeit on objectively unreasonable grounds, that the victim consented to his sexual advances. This latter fact was clearly spelt out in the sentencing judge’s remarks on sentence, which were before the Minister. The submission and issues paper also clearly referred to this aspect of Mr Eden’s conduct, as well as to the representations that had been made on Mr Eden’s behalf on that point. Whilst the Reasons do not expressly refer to this aspect of Mr Eden’s behaviour, it does not follow that the Minister necessarily ignored it. It is equally consistent with the Minister not regarding it as sufficiently material to include in the brief recitation of Mr Eden’s offending conduct (at Reasons [11]). Whilst the fact that Mr Eden was acting under a mistake was undoubtedly relevant to a proper consideration of the seriousness of his offending, it did not compel a finding that his offending was not very serious, as Mr Eden effectively contended. It was open to the primary judge to find that Mr Eden’s offence was very serious despite the fact that he was acting under a mistake.
75 It may be accepted that the discussion in the Reasons concerning the seriousness of Mr Eden’s offending conduct was brief and somewhat cursory. The broad generalisations in the Reasons concerning the seriousness with which the community views sexual offences were also far from illuminating or helpful. Nevertheless, the Minister’s view that Mr Eden’s offending was “very serious” was a view that was open on the facts and was not in any sense irrational or illogical.
76 There is, in any event, a further difficulty with the primary judge’s findings and reasons concerning the seriousness of Mr Eden’s offending. That difficulty is that, even if it was possible to conclude that the Minister’s view of Mr Eden’s offending as being “very serious” was not open on the facts, there could be no doubt that it could nonetheless be viewed as “serious”. Mr Eden himself appeared to concede as much. In his representations to the Minister in response to the notice advising him of the intention to cancel his visa, Mr Eden conceded “without reservation” that his conviction for sexual assault was a serious offence.
77 It is difficult to see how an evaluation of the reasonableness of the Minister’s decision could possibly turn on whether the offence was properly characterised as “serious”, as opposed to “very serious”. The Minister’s decision did not depend on any such fine distinction. Rather, the Minister’s decision primarily turned on the risk to the Australian community if Mr Eden was permitted to remain in Australia. The Reasons record that the Minister considered that risk to be a function of the risk of Mr Eden re-offending and the harm that would be suffered by a member of the Australian community if Mr Eden did re-offend. Whilst the Minister found that the risk of Mr Eden re-offending was low, she also found that the harm that would be suffered by a member of the community if Mr Eden did re-offend would be “significant”. That finding did not hinge on whether the offence was characterised as very serious, as opposed to merely serious.
78 To an extent, this point appeared to be acknowledged by Mr Eden in his oral submissions. Mr Eden’s oral submissions were directed more at the question of whether the Minister’s findings in relation to risk to the Australian community were open and capable of rationally and reasonably supporting the cancellation decision. That more substantive question is addressed later in the context of the Minister’s third contention (appeal ground 6).
THE MINISTER’S FINDINGS IN RELATION TO DELAY (APPEAL GROUND 4)
79 The Minister’s submissions concerning the primary judge’s findings relating to delay were misconceived. The Minister’s submissions effectively proceeded on the basis that the primary judge had found that the Minister was bound to, but did not, have regard to the delay in cancelling Mr Eden’s visa. Thus, the Minister characterised the primary judge’s finding as involving the species of legal unreasonableness which involves the identification of a jurisdictional error in the decision-making process (failing to have regard to a relevant consideration), as opposed to an “outcome-focused” finding of unreasonableness. The Minister contended that there was no jurisdictional error in the decision making process because delay was not a mandatory consideration in the exercise of the discretion under s 501(2) of the Act. Thus, so the Minister’s argument went, delay should not have been relied upon by the primary judge as a factor supporting a conclusion of legal unreasonableness.
80 The difficulty with the Minister’s submission is that it is tolerably clear that the basis of the primary judge’s finding of unreasonableness was that the cancellation outcome was unreasonable. The primary judge did not find that delay was a mandatory consideration that the Minister was bound to, but did not, take into account. Rather, his Honour found that delay was “one factor” which was relevant to whether the cancellation outcome was unreasonable (Judgment at [16]). The other main factor was the fact that the offence was objectively not a very serious offence.
81 The primary judge was correct to find that the time that had elapsed since Mr Eden had been convicted of the offence was a fact that was relevant to have regard to in assessing the reasonableness of the cancellation outcome. It was relevant in at least two ways.
82 First, one of the factors that the Minister considered was relevant to the exercise of the cancellation discretion was the risk to the Australian community should Mr Eden re-offend. Plainly, the time that had elapsed since the offence was committed, and since Mr Eden had been sentenced, was relevant to an assessment of the risk of Mr Eden re-offending. The Minister expressly took that consideration into account. In assessing the risk to the Australian community, the Minister took into account the fact that the “available evidence shows that Mr EDEN has complied with the obligations associated with his conviction, incurring no breaches and engaging in no further criminal or serious conduct since his last offence in 2009” (Reasons at [23]). That was no doubt one of the reasons that the Minister accepted that the risk of Mr Eden re-offending was low.
83 Second, the time that had elapsed since the offence and the sentence was relevant to an assessment of the hardship that would be suffered by Mr Eden and his family if his visa was cancelled. Since the commission of the offence in December 2009, Mr Eden’s personal and family circumstances had changed. His wife and child had joined him in Australia. He and his wife had apparently purchased a home in Queensland and Mr Eden had commenced a transport business. Thus, Mr Eden’s and his family’s ties to Australia had strengthened in the intervening years. The dislocation and hardship to him and his family if he were forced to return to New Zealand had therefore correspondingly increased. A fair reading of the Reasons suggests that the Minister had regard to those changed circumstances, albeit not expressly in the context of any asserted delay (see Reasons at [38], [39] and [43]).
84 The question of whether delay was or was not a mandatory consideration distracts from the central question, which is whether the outcome of the Minister’s cancellation was legally unreasonable. The Minister’s submission that the primary judge should not have relied upon delay as a factor supporting the outcome based conclusion of unreasonableness because it was not a mandatory consideration is rejected.
85 It was open to the primary judge to have regard to the time that had elapsed since Mr Eden’s conviction and sentence. The primary judge characterised the relevant effluxion of time as delay and implicitly, if not expressly, criticised the lack of urgency or lethargy on the part of the Minister, her officers and other officers of the Commonwealth in acting on the information concerning Mr Eden’s conviction (Judgment at [29]). His Honour appears to have concluded that the apparent lethargy on the part of some or all of those officers “in itself, may well be a factor which warrants a conclusion that this particular outcome was oppressive and unreasonable” (Judgment at [29]). Ultimately, however, his Honour found that delay was but one of a number of factors that compelled that conclusion (Judgment at [34]).
86 Two additional points should be made concerning the primary judge’s findings in relation to delay. First, it should be noted that the Minister led no evidence to explain when her department first became aware of Mr Eden’s conviction, and no evidence explaining why it appears to have taken so long to have acted on that information once received. It is perhaps understandable in those circumstances why his Honour characterised the Minister’s decision as involving delay. It is equally understandable that his Honour inferred that the delay was the product of a lack of urgency or lethargy on part of certain officers of the Commonwealth.
87 Second, it will be recalled that his Honour referred to two United Kingdom decisions that involved findings of delay: Handscomb and Doody. The Minister correctly submitted that the observations concerning delay in those cases were made in entirely different factual and legal context. Nevertheless, his Honour appears to have referred to those cases merely as illustrations of unacceptable delay, not as authority for any particular legal principle in relation to legal unreasonableness on account of delay.
88 The question of whether the primary judge’s conclusion that the outcome of the Minister’s decision was legally unreasonable is the subject matter of the Minister’s third contention (appeal ground 6). The primary judge’s findings concerning delay are considered further in that context. For the present purposes, however, it is sufficient to state that the Minister’s ground of appeal that related to the primary judge’s findings in relation to delay has no merit.
DID THE PRIMARY JUDGE ERR IN CONCLUDING THAT THE CANCELLATION OUTCOME WAS LEGALLY UNREASONABLE (APPEAL GROUND 6)
89 Having regard to the way the appeal was ultimately argued by the parties, two questions arise in the context of the Minister’s third contention (appeal ground 6). The first question is whether the primary judge misapplied the principles relating to legal unreasonableness because, in effect, he remade the decision according to his own view of reasonableness, rather than assessing whether the decision was within the range of possible lawful outcomes as an exercise of power. The second question is whether, if the primary judge did ask himself the correct question, his Honour’s assessment and conclusion was correct. Was the Minister’s decision outside the range of possible lawful outcomes of the exercise of the s 501(2) power?
90 Mr Eden submitted that the primary judge correctly applied the principles relating to legal unreasonableness. He pointed to the fact that the primary judge correctly noted, towards the beginning of his reasons (at Judgment [9]), that the Court is concerned with the legality of the decision, not with its merits. Towards the end of his Honour’s reasons (at Judgment [32]) reference was also made to the observations of Gageler J in Li (at [113]) concerning the stringency of the test for legal unreasonableness. Thus, Mr Eden submitted that the primary judge started at the right point and finished at the right point. He also submitted that a finding of unreasonableness necessarily involves the Court assessing whether, on the objective facts, the decision was unreasonable. That assessment, in Mr Eden’s submission, is an expression of the Court’s finding that the decision is outside the range, not a substitution of the Court’s own view as to the right decision.
91 The difficulty with Mr Eden’s assessment of the primary judge’s reasons is that nowhere in the reasons does his Honour refer to the existence of a range of possible lawful outcomes of the exercise of the s 501(2) power in Mr Eden’s case. Nowhere does his Honour acknowledge that, in the exercise of power under s 501(2) of the Act, there is an area within which the decision-maker has a “genuinely free discretion”, and that the task of the Court, in reviewing a decision for legal unreasonableness, is to evaluate whether the decision fell within that area, having regard not only to the facts, but also to the subject matter, scope and purpose of the statute in question. His Honour did not appear to accept that reasonable minds might differ in relation to whether Mr Eden’s visa should be cancelled. His Honour appears, rather, to have assessed what he considered to be the reasonable outcome and effectively concluded that any other view was unreasonable.
92 Another indication that the primary judge may have misapplied the principles concerning legal unreasonableness is his Honour’s acknowledgement that there was “nothing bizarre or irrational in the sense of incomprehensible about the Minister’s reasons” (Judgment at [28]). Whilst his Honour went on to give an extreme hypothetical example of such irrationality (cancellation on the basis of hair colour), the concession that the Minister’s reasons were not bizarre on one view may be seen to amount to an acknowledgment that there was an evident and intelligible justification for the Minister’s decision. It was just not one that the primary judge agreed with.
93 Ultimately, it is difficult to avoid the conclusion that the primary judge did not correctly apply the principles relating to legal unreasonableness. His Honour did not evaluate the decision with a view to ascertaining whether it was within the range of lawful outcomes having regard to the terms, scope and purpose of the Act, and s 501(2) specifically. Rather, his Honour assessed what he considered to be reasonable and effectively concluded that any other outcome must have been unreasonable and therefore in jurisdictional error. He remade the decision on the basis of his own view of reasonableness.
94 Even if that is not a correct characterisation of the primary judge’s reasons, and his Honour did undertake the correct evaluative task mandated by the statements of principle in Li, Singh and Stretton, the question remains whether the primary judge’s assessment and conclusion of legal unreasonableness was correct. As Allsop CJ noted in Stretton (at [25]):
…Though the task of assessing legal unreasonableness is partly an evaluative process, it is one rooted in the legal source of the power and the values and considerations drawn from the statute and the common law. There would be in such circumstances no call to treat such evaluation as akin to a discretion such that its review would be concluded by reference to House v The King. The power was either lawfully exercised by the executive or not. While judicial decision about that question might be contestable, there can only, legally, be one correct answer: cf Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at 436 [25]. The proper framework of the appeal is not as the review of the exercise of a judicial discretion or of an evaluative judgment of like character.
95 The question, then, is whether the primary judge’s conclusion that the Minister did not lawfully exercise the s 501(2) cancellation power in Mr Eden’s was case the legally correct answer.
96 Mr Eden contended that the Minister’s decision was outside the range of proportionate responses available to the Minister, and that no reasonable Minister could, on the objective facts, have concluded that the cancellation power should have been exercised. He pointed, in support of that submission, to the particular conduct of Mr Eden that was in question, being sexual advances under the mistaken belief that they were consensual, the low risk of reoffending and the fact that Mr Eden had been permitted to remain in and develop further ties with Australia for some years after he was convicted of the offence.
97 There could be little doubt that Mr Eden’s circumstances presented the Minister with a difficult decision about which reasonable minds could differ. Mr Eden received the bare minimum sentence necessary to enliven the s 501(2) discretion by reason of the operation of s 501(6)(a) and (7). He was sentenced on the basis that his offence was the result of a mistake, albeit one not based on objectively reasonable grounds. His offence was perhaps towards the low end of the scale of seriousness of sexual assault offences. It was accepted that the risk of him re-offending was low. In the four years since his conviction, he had committed no further offences and he and his family had developed further ties with Australia.
98 On the other hand, it is difficult to accept that the Minister’s findings concerning the potential risk of harm to the Australian community, should Mr Eden be permitted to remain in Australia, were not findings that were reasonably open. The Minister reasoned that, whilst the prospects of Mr Eden reoffending were low, the harm that would be suffered if he did was great. Given the sexual nature of the offence and the harm that was in fact suffered by the victim, the Minister’s view that the risk of harm was an unacceptable risk was a view that was open on the facts. It could not be considered to be in any sense unreasonable, illogical or irrational.
99 It follows that the Minister’s findings in relation to the risk of harm to the Australian community provided an evident and intelligible justification for the cancellation decision, albeit not a justification that everyone would necessarily agree with. The primary judge appears not to have agreed with that justification, though he did not say so in terms. Indeed, his Honour’s reasons for finding that the outcome was unreasonable – that the offence was not very serious and there was a delay between Mr Eden’s conviction and the cancellation decision – did not directly engage with the Minister’s justification based on the protection of the Australian community. In any event, even if the primary judge did disagree with the Minister’s finding and justification for the cancellation based on the protection of the Australian community, that provided no proper basis for a conclusion that the decision was legally unreasonable if, as was the case, that finding and justification was one that was reasonably open on the objective facts.
100 To the extent that the primary judge’s reasons for concluding that the decision was legally unreasonable rested on an absence of proportionality, the primary judge did not explain why cancellation was not a proportionate response, beyond merely concluding that the Minister had “taken a sledge hammer to crack a nut”. It was accepted that one of the purposes of the s 501(2) cancellation power was the protection of the Australian community from the risk of harm. The Minister found that Mr Eden presented a risk of harm that justified the cancellation of his visa. The primary judge neither found, nor explained why, the Minister’s finding concerning the risk of harm to the Australian community was not open, or why, accepting the existence of such a risk, cancellation was not a proportionate response to that risk. There was and is no basis for concluding that cancellation was “on any view” (Li at [30] per French CJ) or “obviously” (Li at 366[74] per Hayne, Kiefel and Bell JJ) a disproportionate response to the risk that was found to exist. It was, at the very least, reasonably open to the Minister to conclude that the cancellation of Mr Eden’s visa was necessary for the protection of the Australian community.
101 Finally, it should be noted that the Reasons revealed that the Minister balanced the risk to the Australian community from Mr Eden’s continued presence in Australia against the competing considerations personal to Mr Eden. The Minister concluded that the balance weighed in favour of cancellation. That was a view that was open to the Minister.
102 In that respect, it should perhaps be observed that, in Mr Eden’s case, the competing considerations were far from overwhelming. Although he and his family had developed ties with Australia, they were of fairly recent origin. Whilst it was accepted that Mr Eden may experience some hardship if required to return to New Zealand, Mr Eden had some family links to New Zealand, prospects of securing accommodation and employment and access to a social support system that was comparable to Australia’s. Whilst removal may not have been in the best interests of Mr Eden’s young child, to an extent that depended very much on whether, as asserted, Mr Eden’s wife and child would ultimately accompany him back to New Zealand. In circumstances where the competing considerations were far from compelling, even a relatively small risk to the Australian community was capable of swinging the balance in favour of cancellation.
103 Parliament has entrusted the power to cancel a visa on character grounds under s 501(2) of the Act to the Minister. Where the Minister exercises that power personally, Parliament has expressly provided for no merits review of that decision, unlike the situation which prevails if the decision is made by the Minister’s delegate. In such circumstances, the Court must be astute to ensure that it is not seen to engage in a form of impermissible merits review under the guise of the legal unreasonableness ground of judicial review. In such circumstances, one would expect (consistently with the observation of Gageler J in Li at [113]) that in the case of decisions made by the Minister personally, intervention on the ground of legal unreasonableness would be fairly rare and would only occur in relatively clear cases. This was not such a case.
104 The primary judge erred in finding that the Minister’s decision, or the outcome of it, was legally unreasonable. The decision to cancel Mr Eden’s visa was within the range of possible lawful outcomes of the exercise of the power under s 501(2) of the Act.
CONCLUSION AND DISPOSITION
105 The Minister’s appeal should be allowed. The orders made by the primary judge should be set aside and, in lieu thereof, Mr Eden’s application for judicial review should be dismissed with costs. Mr Eden should also pay the Minister’s costs of the appeal.
Associate:
Dated: 9 March 2016
