FEDERAL COURT OF AUSTRALIA

BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78

ORDERS

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from a decision of a Judge of this Court in which the Judge dismissed the appellant’s amended application for review. Before the primary Judge the appellant sought orders quashing the decision of the Minister for Immigration and Border Protection (the Minister) to refuse to revoke a decision of a delegate cancelling the appellant’s visa under the Migration Act 1958 (Cth) (the Migration Act).

Background facts

2    The background facts to this matter are set out in the primary judgment and are not in dispute. In summary, the appellant is a citizen of the People’s Republic of China who arrived in Australia in 1995 and was granted a Protection (Class AZ, Subclass 866) visa. He was subsequently granted a series of Return (Residence) (Class BB, Subclass 155) (Five Year Resident Return) visas.

3    Between 1996 and 2014 the applicant was convicted of numerous offences in Australia, including:

    In 2006:

o    assault occasioning actual bodily harm (for which the appellant was sentenced to 12 months imprisonment, suspended on entering a 12 month good behaviour bond). It appears that the appellant breached this bond in August 2006 and was arrested and remanded; and

o    two counts of driving while disqualified (for which he received concurrent terms of imprisonment of 12 months); and

o    making a false statement in a licence application (for which he was sentenced to 12 months imprisonment).

    In 2014:

○    embezzlement as a clerk or servant of more than $2,000 and less than $5,000, and stealing property as a clerk or servant (for which he was sentenced to nine months and six months prison respectively).

4    On 17 March 2015 a delegate of the Minister cancelled the appellant’s visa pursuant to s 501(3A) of the Migration Act (the visa cancellation decision). The Department contacted the appellant and invited him to seek revocation of the visa cancellation decision pursuant to s 501CA of the Migration Act. The appellant did so. In his submissions to the Minister the appellant said that he was married to an Australian citizen, and had a young daughter who is an Australian citizen. The appellant also has an adult son from a previous marriage, and a stepson from his current marriage.

5    The material submitted to the Minister by the appellant indicated that the appellant had experienced a number of stressful life events in recent years, including his wife being diagnosed with cancer, business difficulties and his own diagnoses of major depression and bipolar disorder.

6    At [39] of the primary decision his Honour summarised the appellant’s contentions supporting revocation of the cancellation decision, namely:

the best interests of his minor daughter; the impact his wife, adult sons and minor daughter would face should his visa [sic] not be revoked; his visa was cancelled on an old conviction and he did not accept that he had a “substantial criminal record” and did not pass the character test; his remorse and rehabilitation; he poses a low risk of re-offending; his convictions are not serious; his mental health conditions contributed to his offending; he has health concerns that need to be addressed; his strong ties to Australia; his positive contributions to the community; and being owed international non-refoulement obligations.

7    On 8 April 2016 the Minister decided not to revoke the cancellation decision because the Minister was not satisfied that the appellant had passed the character test (as defined by s 501), and because the Minister was also not satisfied that there was another reason why the cancellation decision should be revoked.

The primary judgment

8    The appellant sought judicial review of the Minister’s decision of 8 April 2016 on the following grounds:

1.    The Minister failed to discharge his statutory task and/or his decision was legally unreasonable in that:

a)    he failed to assess the likelihood of reoffending in circumstances where the nature of the offending was not such that it was open to find (and, in any event, the Minister made no finding) that any risk of reoffending, howsoever small, warranted cancellation; and/or

b)    he failed, in assessing the likelihood and/or consequences of reoffending, to differentiate between the Applicant’s (historical) violent offences and his (recent) dishonesty offences.

2.    The Minister, in exercising his discretion, had regard to the punitive effect of visa cancellation, which was an irrelevant consideration.

PARTICULARS

a)    The Minister had regard to the Applicant’s criminal record, without more, as a factor favouring visa cancellation.

b)    The Minister also had regard to a (perceived) expectation of the Australian community that the Applicant should not hold a visa on account of his criminal record.

9    After considering the relevant statutory provisions and the grounds of review his Honour dismissed the application.

Notice of appeal

10    The appellant’s grounds of appeal expand on the grounds of review before the primary Judge. They are as follows:

1.    The Court erred in failing to find that the Minister committed jurisdictional error by cancelling the Appellant’s visa without making a finding as to the likelihood of him reoffending or a finding that any possibility of reoffending was unacceptable. In particular:

a.    The Court erred in finding, at [69], that there may be other logical and rational modes of reasoning to those identified at [65]; and

b.    The Court erred in finding, at [71] that the Minister’s reasoning process was logical and rational because he made a finding tantamount to a finding that there was “a” risk if reoffending.

2.    The Court erred in failing to find that the Minister engaged in a legally unreasonable process of reasoning by assessing the likelihood of the appellant reoffending and the potential consequences of him reoffending by reference to different past offending (historical violent offending and recent dishonesty offending). In particular, the Court erred in finding, at [75], that the Minister found the applicant’s recent dishonest offending to be “serious”.

3.    The Court erred, at [77], in failing to find that the Minister fell into jurisdictional error by having regard to an irrelevant consideration in the punitive effect of visa cancellation.

11    On 6 March 2017 the Minister filed a notice of contention, averring that the primary judgment should be affirmed on grounds other than those relied on by his Honour. The ground was as follows:

The finding in [82] of the Minister’s statement of Reasons (AB 23) that the Appellant “poses an ongoing likelihood of reoffending” means that there is something more than a bare possibility of re-offending; that is, higher than “a” risk: cf Reasons of the primary Judge, [71].

Grounds 1 and 2

12    The first and second grounds of appeal both relate to the conclusions of the Minister referable to the risk and/or likelihood of the appellant reoffending. The relevant findings of the Minister are at [50]-[82] under the heading “Protecting the Australian Community” in the Minister’s Statement of Reasons for Decision.

13    It is appropriate to consider these grounds of appeal together. In doing so it is convenient to examine in some detail the relevant reasons of the Minister and the reasoning of his Honour.

“Protecting the Australian community”: reasons of the Minister

14    In considering whether there was another reason justifying the revocation of the visa cancellation decision, the Minister had regard to the importance of protecting the Australian community. The Minister noted in particular the appellant’s claim that he had been rehabilitated, and his commitment to “staying out of trouble”. The Minister set out in detail from [51]-[60] the offences committed by the appellant, described by the Minister as “including violent, driving and dishonesty offences”. At [51] the Minister observed that “offences such as embezzlement and theft are serious, and that violent offences are very serious”. The Minister reiterated his view concerning the seriousness of the appellant’s assault offences, and referred to the appellant’s “long history of driving offences which commenced in 1998 until 2006” ([61]-[62]). At [63] the Minister noted the sentencing Judge’s description of the seriousness of the appellant’s driving offences as “significant”, and noted further that after losing his driving licence the appellant had fraudulently applied for licences in false names.

15    The Minister then had regard to the appellant’s other offences in Australia and related court outcomes, and the appellant’s submissions regarding the circumstances of some of his offending (at [61]-[62], [66]).

16    The Minister observed:

67.    I consider [the appellant] is a repeat offender and has a history of offending involving some violence, although I note these offences are now dated. I note Judge Armitage’s comments in regards to his offence of assault occasioning actual bodily harm in 2008 and also note that [the appellant] has a long history of traffic-related offences.

68.    I find that [the appellant’s] overall criminal history consists of both serious and lower level offending.

17    The Minister turned to the sub-topic “Risk to the Australian community”. The Minister had regard to the appellant’s mental health, his domestic circumstances, and his business losses. At [70] the Minister had regard to the sentencing Judge’s comments on 23 August 2004 which described the circumstances leading to the appellant offending, and comments of another sentencing Judge on 15 December 2006 to the effect that the appellant’s mental health problems contributed to his offending.

18    At [71] the Minister accepted that the appellant had some prospects of rehabilitation. Further, at [73] the Minister accepted that the appellant was remorseful, had made some progress towards rehabilitation, and that his prison psychologist took the view that the appellant posed “a very low risk” of reoffending. However at [74] the Minister observed:

… while [the appellant] has expressed some remorse, I note he does not appear to take responsibility for his most recent offending. I note Magistrate Still’s comments that [the appellant’s] account of the offending was fabricated and that he had shown no remorse.

19    The Minister noted at [75] that the appellant’s mental health had deteriorated since the visa cancellation decision, at [76] that the support the appellant received from his family, friends and Church could assist in his rehabilitation, and at [77] that the appellant had demonstrated good behaviour while in immigration detention. At [78] the Minister noted that the appellant had been warned on two occasions about the possible consequences of further criminal reoffending, but that the appellant had nonetheless reoffended. At [81]-[82] the Minister said:

81.    I find that [the appellant] has demonstrated some remorse for his actions and that his mental health conditions and marriage breakdown were contributing factors to his offending. I consider [the appellant] has made some progress towards his rehabilitation, indicating he has completed numerous courses whilst incarcerated and receiving assistance and support from the prison psychologist. He also has support from family and friends. [The appellant] has also made a commitment to change and to stay out of trouble. However, I note [the appellant] previously made a similar statement but continued to offend. I consider that [the appellant] is a repeat offender and whilst after 2006, he did have a prolonged period of some six years of not offending, he nevertheless offended more recently in 2014 via dishonesty offences. In addition, various dispositions failed to deter [the appellant] from further offending, including fines, bonds and relatively short terms of imprisonment. Further, he has breached judicial orders and has displayed a disregard for the previous warnings about the possible consequences of further criminal offending in Australia. I note [the appellant’s] ability to refrain from further offending remains untested in the community.

82.    Therefore I find that [the appellant] poses an ongoing likelihood of reoffending. If [the appellant] did re-offend in a similar manner it could result in conduct that could cause financial, emotional and/or physical harm to a member of the Australian community.

20    The Minister set out his overall conclusion as follows:

83.    I considered all relevant matters including (1) an assessment of whether the person has made representations in accordance with the invitation for the purposes of s 501CA(4)(a); (2) an assessment of whether I am satisfied that the person passes the character test (as defined by section 501) for the purposes of s 501CA(4)(b)(i); (3) an assessment of whether I am satisfied that there is another reason why the original decision should be revoked for the purposes of s 501CA(4)(b)(ii); and (4) all information available to me, including information provided by, or on behalf of, [the appellant].

84.    I conclude [the appellant] has made representations in accordance with the invitation.

85.    I am not satisfied that [the appellant] passes the character test (as defined by section 501).

86.    In considering whether, in light of [the appellant’s] representations, I was satisfied that there is another reason why the original cancellation decision should be revoked, I gave primary consideration to the best interests of [the appellant’s] child and found that her best interests would be served by the revocation of the mandatory visa cancellation decision. However, for the reasons mentioned below, this consideration is outweighed by other considerations and I do not regard it to be ‘another reason’ why the cancellation should be revoked for the purposes of s 501CA(4)(b)(ii).

87.    In addition, I have considered the length of time (20 years) [the appellant] has made a positive contribution to the Australian community through his employment and business activities and the consequences of my decision for his other family members.

88.    On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the extended period of serious offending by [the appellant]. I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia.

89.    Further, I find that the Australian community could be exposed to great harm should [the appellant] reoffend in a similar fashion. I could not rule out the possibility of further offending by [the appellant].

90.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I conclude that [the appellant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his child, as a primary consideration, and any other considerations mentioned above that may have favoured revocation. These include his lengthy residence, his ties to Australia, his mental health conditions, his wife’s current medical condition and the hardship [the appellant], his family and social networks will endure in the event the original decision is not revoked.

91.    Having given full consideration to all of these matters, I am not satisfied, for the purposes of s 501CA(4)(b)(ii), that there is another reason why the original decision to cancel [the appellant’s] visa should be revoked. Accordingly, I have decided not to revoke the original decision to cancel [the appellant’s] Class BB Return (Residence) Subclass 155 (Five Year Resident Return) visa.

Views of the primary Judge

21    In relation to the first ground of review before the primary Judge, the appellant claimed that the Minister’s decision was unreasonable in that the Minister failed to assess the likelihood of the appellant reoffending in circumstances where the nature of appellant’s offending was not such that it was open to the Minister to find that any risk of reoffending warranted cancellation.

22    Addressing this point, his Honour commenced:

65.    The applicant invokes notions of rational or reasonable decision-making rather than (as considered in Moana) mandatory relevant considerations. The applicant submits that the Minister may identify a risk of harm that is so serious as to be unacceptable, whatever the likelihood of its coming to pass; alternatively, he may weigh the risk of harm by considering both the seriousness of the harm and the likelihood of re-offending; but only through one or other of these modes of reasoning can the Minister balance the risk of harm against countervailing considerations. The applicant submits that to reason otherwise (eg, by simply identifying a risk of harm and then purporting to balance it against countervailing considerations) would be an unreasonable exercise of the Minister’s discretion or a failure to complete the task at hand ...

23    His Honour noted that there were two limbs to the appellant’s first ground of review. So far as concerned the first limb, at [68] his Honour found that, in exercising the power conferred by s 501CA(4), the Minister had no duty to evaluate the risk of harm to the Australian community in any particular way or to ascribe any particular characterisation to the quality of the risk. His Honour continued:

69.    The applicant’s submission summarised in [65] above, to the effect that there are only two logical or rational modes of reasoning, is overly prescriptive. There may be other ways of reasoning in relation to the risk of harm to the Australian community which are logical and rational. It is necessary to look at the reasoning adopted in the particular case and consider whether it is legally unreasonable.

70.    In the present case, contrary to the applicant’s submissions, the Minister did assess the likelihood of re-offending:

(a)    The Minister considered offences such as embezzlement and theft to be “serious” and violent offences to be “very serious” (Statement of Reasons, [51]).

(b)    The Minister referred to the applicant’s 2014 offences at [53]-[54] and his earlier violent offences at [55]-[61] of the Statement of Reasons. The Minister then referred to the driving offences.

(c)    After discussion of matters such as rehabilitation and remorse, the Minister found that the applicant “poses an ongoing likelihood of reoffending” (Statement of Reasons, [82]). The Minister also found that if the applicant did re-offend in a similar manner, “it could result in conduct that could cause financial, emotional and/or physical harm to a number of the Australian community” (also at [82]).

(d)    The Minister therefore concluded that the applicant “represents an unacceptable risk of harm to the Australian community” (Statement of Reasons, [90]).

71.    The finding that the applicant posed “an ongoing likelihood of reoffending” is tantamount to a finding that there was “a” risk of re-offending. This was sufficient, in my view, to support a rational and logical reasoning process. It was not incumbent on the Minister to make a more precise finding as to the gradation of risk posed by the applicant in order to support a rational and logical reasoning process. Indeed, it might be said to be unrealistic to expect the Minister to do so given the inherent difficulty of predicting human behaviour of this kind.

72.    For completeness, I note that it is clear that the Minister did assess the risk of harm to the Australian community. He considered there to be an “unacceptable” risk of harm to the Australian community.

73.    For these reasons, it is not shown that the Minister failed to discharge his statutory task or that his decision was legally unreasonable for failure to assess the likelihood of re-offending.

24    In relation to the second limb of the first ground of review, the appellant submitted that, even if the Minister did consider both the seriousness of the appellant’s offending and the likelihood of reoffending, nonetheless there was a disconnect in the Minister’s reasoning because:

    it was not obvious which offending of the appellant was considered by the Minister to be “serious”; and

    the Minister appeared to base his decision on his assessment of the seriousness of the appellant’s historical violent offending, whereas the Minister assessed the likelihood of the appellant reoffending on his more recent dishonesty offending.

25    His Honour found that this submission was not substantiated. This was because:

    the Minister found that the appellant’s more recent convictions for embezzlement and theft were serious; and

    it was not correct to say that the Minister based his decision on the seriousness of the appellant’s historical violent offences, because the Minister also considered the recent dishonesty offences to be serious.

Consideration

26    During the course of argument in the appeal the parties referred the Court to the decision in Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367. In that case this Court examined relevant considerations to be taken into account by the Minister when exercising the discretion to cancel a visa under s 501(2) of the Migration Act. Section 501(2) empowers the Minister to cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test; and the person does not satisfy the Minister that the person passes the character test.

27    Rangiah J (with whom North J agreed) found that in exercising his or her discretion the Minister was bound to consider whether there was a risk of harm to the Australian community by the continued presence of the visa holder in Australia but that the statute contains no implication that the Minister must evaluate the risk of harm in a particular way. Rangiah J further observed that the Minister was not bound to conduct an evaluation of the likelihood of the visa holder engaging in future conduct that could cause harm, but continued:

74.    … That is not to say that evaluation of such likelihood will not be centrally relevant to the exercise of the Minister’s discretion in most cases. The exercise of the discretion to cancel a visa without examining the likelihood of future harm may in some circumstances be unreasonable, in the sense of lacking an evident and intelligible justification … However s 501(2) cannot be construed to require the Minister to take into account that likelihood in all cases.

28    The task of the Minister required by s 501(2) of the Migration Act, which was examined by the Full Court in Moana 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.

31    In this case, in assessing whether another reason existed to warrant cancellation of the visa cancellation decision, the Minister had regard to the submissions of the appellant, and more generally to considerations set out in his conclusions (including under the heading “Protecting the Australian community”).

32    It is not in dispute that the protection of the Australian community is a relevant consideration to which the Minister should have regard in determining whether “another reason” exists for revoking a visa cancellation decision under s 501CA, and we accept that this factor is relevant in terms of the subject-matter, scope and purpose of s 501CA. A fundamental issue raised by the first two grounds of appeal, however, is the manner in which the Minister should approach the task of evaluating whether there is a prospective danger to the Australian community should the relevant visa cancellation decision be revoked. In the first and second grounds of appeal the appellant focused on the following broad matters, which we will consider in turn.

Ground 1: Did the Minister make findings as to the likelihood of the appellant reoffending?

33    In considering whether a person poses a threat to the protection of the Australian community, the likelihood of his or her reoffending is a matter which can reasonably be taken into account by the Minister. Observations of the majority in Moana 230 FCR 367 at [74] as to risk and likelihood of reoffending are relevant in this context.

34    At [70] of the primary judgment his Honour observed as follows:

In the present case, contrary to the applicant’s submissions, the Minister did assess the likelihood of re-offending:

(a)    The Minister considered offences such as embezzlement and theft to be “serious” and violent offences to be “very serious” (Statement of Reasons, [51]).

(b)    The Minister referred to the applicant’s 2014 offences at [53]-[54] and his earlier violent offences at [55]-[61] of the Statement of Reasons. The Minister then referred to the driving offences.

(c)    After discussion of matters such as rehabilitation and remorse, the Minister found that the applicant “poses an ongoing likelihood of reoffending” (Statement of Reasons, [82]). The Minister also found that if the applicant did re-offend in a similar manner, “it could result in conduct that could cause financial, emotional and/or physical harm to a number of the Australian community” (also at [82]).

(d)    The Minister therefore concluded that the applicant “represents an unacceptable risk of harm to the Australian community” (Statement of Reasons, [90]).

35    We can identify no error in this summary by his Honour.

36    We are satisfied that the Minister made findings as to the risk and likelihood of the appellant reoffending. Whether these findings were logical and rational, or reasonable, is a separate question to which we now turn.

Ground 1: Illogical or irrational reasoning of the Minister

37    The gravamen of the appellant’s complaint in the first ground of appeal is that the manner in which the Minister reached his conclusions as to likelihood of reoffending and risk was neither logical nor rational, and the primary Judge erred in failing to set aside the Minister’s decision on that basis. In particular, the appellant identified two errors in the reasoning of the primary Judge, namely:

    his Honour erred in finding that there could be other logical and rational modes of reasoning to those identified at [65] of the Minister’s Statement of Reasons; and

    his Honour erred in holding at [71] that, in making a finding that there was “a” risk of reoffending, the Minister’s decision was logical and rational.

38    In his submissions the appellant argued, in summary:

    Although the Minister discussed the risk to the Australian community at length, his only findings were that the appellant posed an ongoing likelihood of reoffending and that if he did reoffend in a similar manner it could result in harm to a member of the Australian community.

    The Minister did not identify what the likelihood was of the appellant reoffending (for example, as “low” or otherwise).

    The Minister found that the risk, so assessed, was outweighed by the consequences which could ensue.

    There were only two logical pathways to the Minister concluding that the visa cancellation decision should not be revoked, namely:

○    the Minister might assess the possible harm which could result from the appellant reoffending as so serious that any risk of reoffending was unacceptable; or

○    the Minister might assess both the seriousness of harm if there was reoffending, and the likelihood of reoffending, permitting him to give weight to the risk of harm, and then weigh that factor in balance against countervailing considerations.

    The reasoning of the Minister as set out in his Statement of Reasons engaged neither pathway, which were the only logical pathways to a non-revocation outcome.

    The Minister cannot balance a risk that he has not weighed against countervailing considerations.

    The Minister’s failure to employ either of the proposed modes of reasoning was legally unreasonable and indicative of him having misunderstood his statutory task.

39    The primary Judge observed at [68] that there was no statutory constraint on the way the Minister assessed risk, save that whatever he took into account must be logical and rational. His Honour rejected as over-prescriptive the appellant’s approach which we have summarised above.

40    It is settled that even wide discretions must be exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously: Starke J in House v The King (1936) 55 CLR 499 at 503, Crennan and Bell JJ in Minister for Immigration v SZMDS (2010) 240 CLR 611 at [121]. To that extent, “illogicality” or “irrationality” in administrative reasoning sufficient to give rise to jurisdictional error means that the decision is one at which no rational or logical decision maker could have arrived on the same evidence: SZMDS 240 CLR 611 at [130]. As Crennan and Bell JJ further observed in SZMDS 240 CLR 611:

131.    … But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

41    It is also settled that the legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (at [63] per Hayne, Kiefel and Bell JJ, at [26]-[28] per French CJ and at [88]-[92] per Gageler J). As French CJ observed in that case (at [30]) a distinction may arguably be drawn between rationality and reasonableness, as not every rational decision is reasonable. In broad summary, legal unreasonableness may include a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process, or a conclusion that the decision is arbitrary, capricious or without “common sense” or lacks an evident and intelligible justification: Li 249 CLR 332 at [28], [76], [105]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44].

42    In this case we do not consider that the reasoning of the Minister was irrational and/or illogical or that his decision was legally unreasonable as the appellant claims. Nor do we consider that the primary Judge erred in rejecting the appellant’s claims that the reasoning was irrational and/or illogical nor that the decision was legally unreasonable. As we have already observed:

    The Minister examined the offences committed by the appellant, noting that they included violent, driving and dishonesty offences (at [52]), that the embezzlement and theft offences were “serious” and the offences of violence were “very serious” (at [51]), and that the traffic offences were “significant” and “disgraceful” (at [63]-[64]).

    The Minister noted that the appellant had reoffended after 2006, notwithstanding that it was a different character of offending from his earlier 2006 offences, and despite his commitment after 2006 not to reoffend.

    In that light, the Minister found that the appellant posed an ongoing likelihood of reoffending, which could cause harm to a member of the Australian community.

    The Minister concluded that the appellant represented an unacceptable risk of harm to the Australian community (at [90]).

43    The Minister is not under an obligation to evaluate in any particular way the risk of harm to the Australian community of the appellant reoffending. In light of these findings the Minister was not required to make findings matching the appellant’s prescribed formula, namely to find that the potential harm to Australian community of the appellant reoffending was so serious that any likelihood of reoffending was unacceptable.

44    The Minister’s process of reasoning or decision could not be described as one at which no rational or logical decision-maker could have arrived on the same evidence, nor is the decision arbitrary, capricious or lacking an evident and intelligible justification. The appellant submits that the logical framework he advances is imposed on the Minister by s 501CA, and argues that the Minister confused the seriousness of the earlier and later offending by the appellant. We do not accept that argument. As the primary Judge found, correctly, the appellant’s approach is over-prescriptive. In exercising the power conferred by s 501CA(4) the Minister was under no duty to evaluate the risk of harm to the Australian community in any particular way or to ascribe any particular characterisation to the quality of the risk: Moana 230 FCR 367 at [71]; Brown v Minister for Immigration and Border Protection (2015) 235 FCR 88 at [41]; Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [44].

45    In this case, it is evident that the Minister concluded the appellant was a repeat offender, that the appellant’s offences were – at the very least – serious, and that there was a likelihood that the appellant would offend again causing harm to members of the Australian community. It was open to the Minister on the available material to form these views. In our view the criticisms of the appellant are not only without foundation, they invite the Court to construe the decision of the Minister with an eye keenly attuned to the perception of error. This is an invitation the Court should resist: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30]-[31]; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [23].

46    In our view the first ground of appeal is not substantiated.

Ground 2: In assessing the likelihood of the appellant reoffending and the potential consequences thereof, did the Minister engage in a legally unreasonable process of reasoning?

47    As we have said, the requirement for reasonableness in administrative decision-making has been explained in such cases as Li 249 CLR 332 and Singh 231 FCR 437 at [43]-[52].

48    In respect of the second ground of appeal the appellant submitted that there was a disconnect in the reasoning of the Minister in concluding that the protection of the Australian community warranted a decision not to revoke the visa cancellation decision. This alleged disconnect was in the Minister’s finding of an ongoing likelihood of the appellant reoffending by reference to the appellant’s 2014 dishonesty offences, when the Minister’s reference to “an extended period of serious offending” by the appellant concerned his violence offences in and prior to 2006.

49    The primary Judge rejected a similar argument at first instance on the basis that it overlooked the finding of the Minister at [51] of the Statement of Reasons that offences such as embezzlement and theft were serious.

50    In our view the second ground of appeal is not substantiated. The reasons of the Minister must be read as a whole. The Minister set out in detail the history of the appellant’s offences, noting that there had been a hiatus in the appellant offending between 2006 and 2014 but that in 2014 the appellant had committed dishonesty offences. The Minister also found that the appellant lacked respect for authority, and had reoffended despite his commitment to avoiding trouble. The Minister took the view at [82] that there was an ongoing likelihood of the appellant reoffending, and that, if he did, the reoffending could result in financial, emotional and/or physical harm to a member of the Australian community.

51    It cannot properly be said that the reasons or decision of the Minister are arbitrary, capricious or without common sense, or lack an evident and intelligible justification. Contrary to the submissions of the appellant, we do not see the validity of the Minister’s decision as dependent on a detailed evaluation by the Minister of each individual aspect of the appellant’s criminal history, the attribution of weight of “seriousness” to each offence and/or a formulaic balancing of each offence and its relative seriousness against factors supporting revocation of the visa cancellation decision. Such a requirement would be, again, over-prescriptive, and an unnecessary burden on the Minister.

52    In any event, we note the observation of the Minister at [51] of the Statement of Reasons that the dishonesty offences of the appellant were “serious” and the violent offences were “very serious”. To that extent, the claim of the appellant that there had been a disconnect in the Minister’s reasoning in respect of the characterisation of only certain offences as “serious” is not substantiated.

53    In our view the second ground of appeal is not substantiated.

Ground 3: Whether punitive effect of visa cancellation

54    In his third ground of appeal the appellant complained that the primary Judge erred at [77] of the primary judgment because his Honour failed to recognise that the Minister had regard to an irrelevant consideration, namely the punitive effect of visa cancellation.

55    Before his Honour the appellant claimed in particulars:

a)    The Minister had regard to the Applicant’s criminal record, without more, as a factor favouring visa cancellation.

b)    The Minister also had regard to a (perceived) expectation of the Australian community that the Applicant should not hold a visa on account of his criminal record.

56    Addressing this issue, at [77] his Honour said:

77.    In my view, the applicant’s second ground is not made out. In Djalic, the Full Court held that the Minister did not exercise the cancellation power in s 501(2) for invalid “punitive” purposes by taking into account the Minister’s perception of expectations of the Australian community as to whether non-citizens who commit serious offences should be permitted to remain in the country: see [63] above. The applicant submits that Djalic rejected the proposition that taking into account the expectations of the Australian community is per se punitive; and that the decision does not preclude a finding in a particular case that community expectations have been relied on in a punitive way. However, I do not read the Statement of Reasons as reflecting a view (whether of the Minister or one attributed to the Australian community) that the applicant deserved to be (further) punished for his offences and, for this reason, the cancellation decision ought not be revoked. Rather, I read the discussion of the expectations of the Australian community (including the references to breach of trust) as directed to whether a non-citizen who has committed serious offences leading to mandatory cancellation of his visa should have the cancellation revoked.

57    We agree with the observations of his Honour at [77]. Specifically:

    It was relevant for the Minister to have regard to the appellant’s criminal record in forming a view of the likely harm to members of the Australian community in the event that the Minister revoked the visa cancellation decision.

    It was relevant for the Minister to have regard to community expectations as to whether non-citizens who have committed serious offences and, in the Minister’s view, could reoffend, should be permitted to remain in Australia: Djalic v Minister for Immigration (2004) 139 FCR 292 at [71], [72], [74].

    The Minister had regard to the criminal history of the appellant in the context of the Minister’s assessment of the ongoing likelihood of the appellant reoffending. Like his Honour, we do not consider that the reasons of the Minister contemplate refusal to revoke the visa cancellation as further punishment of the appellant for his past criminal conduct.

58    In our view the third ground of appeal is not substantiated.

Conclusion

59    The appropriate order is to dismiss the appeal with costs.

Associate:

Dated:    18 May 2017