FEDERAL COURT OF AUSTRALIA

Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The Appellant is to be released from immigration detention forthwith.

3.    The Respondent is to pay the Appellant’s costs of the appeal and of the Court below.

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

REASONS FOR JUDGMENT

FLICK J:

1    Concurrence is expressed with the reasons and orders proposed by Charlesworth J.

Associate:    

Dated:    8 December 2017

REASONS FOR JUDGMENT

PERRY J:

2    I agree with the orders proposed by Charlesworth J and with her Honour’s reasons.

Associate:

Dated:    8 December 2017

REASONS FOR JUDGMENT

CHARLESWORTH J:

3    The appellant, Mr Muggeridge, is a 54 year old citizen of New Zealand. From September 1997 he resided in Australia as the holder of a visa granted to him under the Migration Act 1958 (Cth). On 4 August 2016 the Minister for Immigration and Border Protection cancelled the visa on character grounds. Mr Muggeridge made an application for judicial review of the Minister’s decision to this Court. The primary judge dismissed his application: Muggeridge v Minister for Immigration and Border Protection [2017] FCA 730.

4    On this appeal, it is submitted that the primary judge erred by failing to find that the decision to cancel the visa was affected by jurisdictional error in that it was legally unreasonable. For the reasons that follow, that submission is to be accepted and the appeal should, accordingly, be allowed.

THE CANCELLATION DECISION

5    Section 501(2) of the Act provides that 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.

6    Mr Muggeridge does not pass the character test because he was sentenced to a term of imprisonment of 12 months or more for an offence committed more than 25 years ago: s 501(6)(a) and s 501(7)(c). The Minister’s power to cancel the visa was therefore enlivened. So much is uncontested.

7    The Minister provided written reasons for the cancellation decision dated 4 August 2016. The reasons record a number of factual findings concerning Mr Muggeridge’s background and his conduct whilst present in Australia. In the following paragraphs, the Minister’s factual findings are summarised in the form of a chronology of events, commencing with Mr Muggeridge’s birth in New Zealand.

Facts

8    Mr Muggeridge was born to Australian citizens. As an infant, he was adopted by a New Zealand couple and he was raised there as a New Zealand citizen. In 1986 Mr Muggeridge was reunited with his birth parents and three siblings, each of whom were born in Australia. He came to Australia aged 22 and resided here lawfully for about eight years.

9    Mr Muggeridge has prior criminal convictions in New Zealand for driving, theft and drug related offences. His criminal offending continued after his arrival in Australia. In 1988 and 1989, he was convicted of driving offences. Also in 1989, he was convicted of assault occasioning actual bodily harm and supply of a prohibited drug. For the latter offence he was sentenced to three months imprisonment.

10    In March 1991, Mr Muggeridge was convicted of an offence involving the supply of a prohibited drug (amphetamine). He was sentenced to four years and six months imprisonment. A further term of 18 months imprisonment was imposed because of Mr Muggeridge’s participation in what the sentencing judge described as a “major criminal enterprise” involving the Life and Death Motorcycle Club, of which he was a member. The Minister found (at [14]):

Mr MUGGERIDGE performed an important role in the Life and Death motorcycle club’s amphetamine business. He organised the club house, looked after money, balanced the books which were kept in code and accounted for the cash on a periodic basis to the president, one of his co-offenders. Police investigations revealed that bulk supplies of drugs were secured and buried in the premises which the gang occupied and members operated the premises like a shop. The scope of the operation, the length of time over which it operated and the quantity of drugs distributed made it a major criminal enterprise netting many thousands of dollars for some of its participants.

11    Mr Muggeridge was deported from Australia on 30 April 1994 by reason of his criminal offending.

12    On 18 September 1997, Mr Muggeridge returned to Australia on a fraudulently obtained passport issued in the name of Robert Peter Warick Anderson and bearing a different date of birth. He resided in Australia for 19 years under that false identity. He worked as a fitter and welder between 1997 and 2010 when he suffered a workplace injury. He presently suffers from Myelomalacia, a debilitating spinal condition he describes as “decaying of the cord”. He has undergone seven surgical procedures since 2010 and remains on a regime of medication. Members of Mr Muggeridge’s family have provided him with daily physical assistance.

13    Mr Muggeridge has formed close personal and familial relationships in Australia, including with his fiancée and two minor step children and their extended families. He plays an active role in the lives of his step children and provides them with emotional and financial support. He has an adult daughter residing in Australia and maintains a good relationship with his former spouse and two former step children from a previous relationship. His adopted parents have died and he has no familial ties in New Zealand.

14    Mr Muggeridge had expressed remorse for his offending and had stated that his offending occurred some 25 years ago when his life was “out of control”. He has been involved in volunteer work for a number of charities and has made positive contributions to his community for 19 years. He has been active in his local church and his church involvement has assisted his rehabilitation.

Reasoning

15    The Minister’s reasoning process is to be discerned from a fair reading of the reasons as a whole, including the Minister’s detailed recitation of the facts summarised above. The grounds of appeal draw specific attention to the following passages of the reasons, appearing under the heading “Risk to the Australian Community”:

22    In terms of the likelihood of Mr MUGGERIDGE re-offending, I note that he has not been convicted of further offending for some 19 years, since returning to Australia in 1997. I have considered that the material before me portrays him as a family man who is active in his local church and has shown charity to the less fortunate. I find he has demonstrated rehabilitation and consider his likelihood of re-offending to be low.

23    Notwithstanding, I have also taken into account the fact that Mr MUGGERIDGE returned to Australia on a fraudulently obtained passport in a false identity and has been using this identity since 1997. I find this to show disregard for Australian and New Zealand criminal and immigration law.

24    I have also given consideration to his past links and position of responsibility within the Life and Death Motorcycle Club. Prior to his deportation on 30 April 1994, Mr MUGGERIDGE stated that he had resigned from the club.

25    There is no evidence that Mr MUGGERIDGE has affiliations with any outlaw motorcycle clubs since returning to Australia on 18 September 1997. Notwithstanding, I find that if Mr MUGGERIDGE resumed contact with any outlaw motorcycle club, his likelihood of re-offending would increase.

26    I find that if Mr MUGGERIDGE engaged in further drug related offending, it could result in psychological and/or physical harm to a member of the Australian community.

16    Of Mr Muggeridge’s past offending, the Minister concluded that the offence for which he was convicted in 1991, relating as it did to the trafficking of illicit substances, was to be viewed very seriously because of the destructive effect of drug offences on the fabric of society as a whole.

17    The risk presented to the Australian community was revisited by the Minister in the concluding paragraphs of the reasons. There it is said:

54    Mr MUGGERIDGE has committed a very serious crime, that of Taking part in the supply of a prohibited drug, which relates to trafficking an illicit substance and he should expect to forfeit the privilege of staying in Australia.

55    In terms of his rehabilitation, I have considered that Mr MUGGERIDGE no longer appears to be affiliated with any outlaw motorcycle clubs and has not re-offended in some 19 years. However, I find that the Australian community could be exposed to great harm should Mr MUGGERIDGE resume contact with any outlaw motorcycle club and re-offend in a similar fashion. I could not rule out the possibility of further offending by Mr MUGGERIDGE. The Australian community should not tolerate any further risk of harm.

56    I have also considered that Mr MUGGERIDGE was deported from Australia on 30 April 1994 and returned on a fraudulently obtained passport on 18 September 1997. I find that Mr MUGGERIDGE has resided in Australia for some 19 years under a false name.

57    I found the above considerations outweighed the countervailing considerations in Mr MUGGERIDGE’s case, including the best interests of his minor step-children and impact on family members. I have also considered the length of time Mr MUGGERIDGE has made a positive contribution to the Australian community and the consequences of my decision for minor children and other family members.

58    I am cognisant that where great harm could be inflicted on the Australian community even strong countervailing considerations are insufficient for me not to cancel the visa. This is the case even applying a higher tolerance of criminal conduct by Mr MUGGERIDGE, than I otherwise would, because he has lived in Australia for most of his adult life.

THE GROUNDS OF REVIEW AND APPEAL

18    In order to succeed on his application for judicial review, it was necessary that Mr Muggeridge show that the Minister’s decision was affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Craig v South Australia (1995) 184 CLR 163; s 474 and s 476 of the Act.

19    Mr Muggeridge relied upon four grounds of review. Only two of the grounds are relevant for present purposes. They were expressed as follows:

Ground 1

The Minister failed to lawfully consider the protection of the Australian community, that being central to the power to refuse or cancel a visa held by a non-citizen and thus a ‘relevant consideration’.

Particulars

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

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

(c)    In assessing the risk to the Australian community the Minister failed to consider the evidence going to the risk, and the degree of risk posed by the applicant.

Ground 4

The Minister’s decision was legally unreasonable.

Particulars

(a)    The finding, by implication, that the applicant posed an unacceptable risk to the Australian community was made without any assessment of the chances of the risk materialising.

(b)    The Minister relied on supposition, rather than evidence in finding that there was a risk.

(c)    That the decision to cancel the applicant’s visa was delayed for more than four years after it was discovered that he was in the Australian community is inconsistent with a finding that he represented an unacceptable risk of harm.

(d)    The justification for the finding that the applicant presented a risk to the Australian community was insufficient to outweigh the inference that the decision to cancel the applicant’s visa was outside the bounds of legal reasonableness.

Further Particulars

(i)    It is not apparent why the unassessed danger to the Australian community outweighed the apparently strong countervailing circumstances, including,

(A)    That the applicant committed his drug offences in 1989.

(B)    That there was no evidence that he had any connection with a motorcycle club, legal or otherwise.

(C)    That he had very strong family, community and church ties.

(D)    That he had a serious and debilitating spinal injury.

20    Grounds 1 and 2 of the amended notice of appeal are to the effect that the learned primary judge should have found grounds 1 and 4 on the application for judicial review to have been established. The reasons given by the primary judge for rejecting those grounds will be considered in the course of determining the merits of the appeal.

MANDATORY CONSIDERATIONS

21    This ground of appeal may be briefly disposed of.

22    The Minister made express findings to the effect that the possibility of Mr Muggeridge re-offending was low (reasons [22]) and that the possibility could not be ruled out (reasons [55]). The Minister evaluated the risk to the Australian community in a way that involved not only an assessment (or purported assessment) of the likelihood of re-offending, but also the nature and extent of the harm that might ensue should the risk, however low, materialise. As can be seen, these two discrete aspects of risk featured as critical considerations in the Minister’s decision such as to outweigh compelling countervailing considerations in Mr Muggeridge’s case (reasons [57] – [59]). The risk of harm to the Australian community was in fact considered by the Minister in the sense that the Minister had consciously engaged with the question. It was for that reason that the primary judge rejected the first ground of review: Muggeridge at [39] — [40].

23    Mr Muggeridge complains not so much of an outright failure by the Minister to have regard to the likelihood of him re-offending. Rather, he complains of the process of reasoning adopted by the Minister in the course of making his assessment of that likelihood. It is submitted that the process of reasoning was affected by legal unreasonableness with the result that the Minister failed to “properly” or “lawfully” consider what was said to be a “mandatory consideration”. That is, with respect, an unnecessarily circular route by which jurisdictional error may be established in the present case. If the Minister’s decision be affected by jurisdictional error for the independent reason advanced in the second ground of appeal, it would not be necessary to cloak the same error in the language of an alternative recognised species of jurisdictional error, such as a constructive failure to have regard to a mandatory consideration. The outcome of the appeal must turn on the contentions raised in the second ground.

24    Before proceeding further, it should be observed that the submissions of the parties on the hearing of the appeal, as in the proceedings before the primary judge, focussed upon an apparent tension in the authorities of this Court concerning the matters mandated for consideration in the exercise of the discretion conferred by s 501(2) of the Act: compare Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367 and Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505.

25    Relevantly, two contentions were considered by the Full Court in Moana.

26    The first contention (accepted by the majority) was that the Minister was bound to consider any risk of harm to the Australian community posed by the continued presence of the particular visa holder in Australia when exercising the discretion under s 501(2) of the Act (Rangiah J at [39] – [66], North J agreeing at [1]). The apparent tension between that aspect of the decision in Moana and the earlier decision of the Full Court in Huynh has been the subject of comment, but remains unresolved: see Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [33]; Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132 at [22] (Allsop CJ, Flick and Griffiths JJ); NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [27]; see also SZSLM v Minister for Immigration and Border Protection [2015] FCAFC 164 at [18]; Brown v Minister for Immigration and Border Protection (2015) 235 FCR 88 at [37] — [38]; Roach v Minister for Immigration and Border Protection [2016] FCA 750 at [64] and AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451 at [49] — [54].

27    The second relevant contention advanced in Moana was that the Minister was required in all cases to perform an evaluation of the likelihood of the visa holder engaging in any future conduct that may cause harm and, more particularly, to evaluate “the static and dynamic factors relevant to such risk” (at [67]). That contention was rejected by the majority (Rangiah J at [67] – [74], North J agreeing at [1]). The decision in Moana is not inconsistent with the earlier decision in Huynh in that respect.

28    As Rangiah J said (at [74]):

I consider that the Minister is not bound to conduct an evaluation of the likelihood of the visa holder engaging in future conduct that may cause harm when exercising the discretion under s 501(2). 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 cases be unreasonable, in the sense of lacking an evident and intelligible justification: cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ. However, s 501(2) cannot be construed to require the Minister to take into account that likelihood in all cases.

29    By a notice of contention filed on this appeal, the Minister contends that the decision of the primary judge should be affirmed on the alternative basis that the Minister was not bound to have regard to “matters relating to the likelihood or otherwise of the appellant re-offending”, the “risk and degree of risk posed by the appellant to the Australian community” and “the evidence of that risk”. In support of the notice of contention it is submitted that the decision in Moana is plainly wrong and should not be followed.

30    It is not necessary to resolve the questions arising on the notice of contention. Whether or not it was mandatory for the Minister to consider the risk of harm to the Australian community posed by Mr Muggeridge’s continued presence in Australia is not to the point in the present case. The Minister in fact performed, or at least purported to perform, an evaluation of the likelihood of Mr Muggeridge re-offending, having particular regard to Mr Muggeridge’s personal circumstances. If illogicality or unreasonableness in the legal sense affects the Minister’s evaluation of the likelihood of Mr Muggeridge re-offending, the decision could not be saved from invalidity merely because a similar evaluation is not mandated by the Act in every case in the sense explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

31    If there be a conflict between the decisions in Huynh and Moana, its resolution should be left for a case in which the outcome depends upon it.

UNREASONABLENESS

Context and principles

32    The second ground of appeal alleges four particulars of legal unreasonableness, expressed in the same terms as on the application for judicial review, extracted at [9] above. For the most part, the particulars challenge an inference drawn by the Minister as to the risk of Mr Muggeridge offending in the future.

33    The finding subject to challenge is a finding of fact the existence of which is not an essential pre-condition to the exercise of the power. In that respect, the jurisdictional error alleged on this appeal is different from that arising in cases involving the exercise of the power to refuse or to grant a visa under s 65 of the Act, the Minister not being subjectively satisfied that the criteria for the grant of the visa are fulfilled. Upon an application for judicial review of a decision to refuse a visa made or purportedly made in the exercise of that power, legal unreasonableness affecting the formation of the Minister’s state of non-satisfaction will go to jurisdiction because such an error would result in the power having been exercised in circumstances where a factual precondition for its exercise (being the lawful formation of a state of mind) did not exist: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [23] – [24]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [37] — [38] (Gummow and Hayne JJ).

34    The power exercised by the Minister in the present case was discretionary. The discretion was clearly enlivened by reason of Mr Muggeridge being unable, on any view of the facts, to satisfy the Minister that he passed the character test. The jurisdictional fact necessary to enliven the discretion clearly existed.

35    The alleged error is one affecting the process of reasoning adopted by the Minister in the exercise of a discretionary power. It is well settled that a discretionary power conferred by a statute is to be construed as subject to the condition that it be exercised reasonably. The principles to be applied are considered at length in the various judgments in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and in the decisions of the Full Court of this Court in Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1. They may be briefly summarised as follows:

(1)    the power conferred under s 501(2) of the Act is implicitly confined by the subject matter, scope and purpose of the legislation: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 (Dixon J);

(2)    as Allsop CJ explained in Stretton (at [11]), the task of reviewing a decision for legal unreasonableness is not definitional, but one of characterisation:

… the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. …

(3)    the Court is to look to the reasons given for the decision to understand why the power was exercised as it was: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437;

(4)    as the Full Court explained in Singh, the process of review of legal unreasonableness “will inevitably be fact dependent”. The Court continued (at [48]):

… That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as ‘intelligible justification’ must involve scrutiny of the factual circumstances in which the power comes to be exercised.

(5)    in a different review context, Deane J spoke of the requirement that a statutory tribunal act rationally and reasonably: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 — 368. His Honour’s explanation of the content of that obligation applies equally to the Minister in the exercise of the power conferred by s 501(2) of the Act (at 367):

When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact.

(6)    nevertheless, as Wigney J said (with respect correctly) in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 (at [55]):

… allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at [66]; SZWCO at [64]-[67].

Consideration

36    It may be observed from the outset that the task of the Minister necessarily involved a degree of postulation as to what might occur in the future should Mr Muggeridge’s visa not be cancelled and should he remain present in the Australian community. The Minister was entitled to speculate as to what might happen in the future by reference to evidence of what had occurred in the past. As the joint judgment held in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ), “[p]ast events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their occurrence.” The adoption of a reasoning process that involved postulation or supposition cannot, in and of itself, therefore constitute jurisdictional error. It is nonetheless necessary that the hypotheses underlying the decision bear some rational connection to the evidentiary materials upon which the Minister is said to have relied.

37    As already observed, the Minister’s assessment of the risk of harm presented by Mr Muggeridge’s continued presence in Australia involved some consideration both of the nature of the harm that might be caused should Mr Muggeridge re-offend, and of the likelihood of that particular harm occurring.

The seriousness of the harm

38    The assessment of the seriousness of the harm was premised on a scenario in which Mr Muggeridge re-offended “in a similar fashion”. The expression “similar fashion” must be understood as referring to Mr Muggeridge’s prior offence committed as a member of the Life and Death Motorcycle Club in 1991.

39    Counsel for the Minister submitted that there was an evident and intelligible basis for the Minister’s evaluation of the nature and severity of that harm to be found at [14] of the reasons (extracted at [10] above). That submission is accepted. The passage of the reasons relied upon contains unchallenged findings (hereafter referred to as “past offence findings”) to the effect that Mr Muggeridge played an important role in a sophisticated, large scale amphetamine “business”, that his co-offender was the president of the club and that the operation netted many thousands of dollars for its participants. The participants together used the resources of the club to advance their objectives and to avoid detection. The Minister concluded that the harm caused by such offending included not only psychological and physical harm to individuals, but harm to the fabric of society. On the basis of the past offence findings, it was plainly open to the Minister to find that the offence committed by Mr Muggeridge in 1991 was very serious and that the harm caused by any similar re-offending by Mr Muggeridge would be equally as serious.

40    The significance of that characterisation in the ultimate result is evident at [58] of the reasons, where it is said that the many “strong countervailing considerations” were insufficient to outweigh the “great harm” that could be inflicted on the Australian community should Mr Muggeridge re-offend. In light of the reasons as a whole, the Minister’s conclusion that the Australian community “should not tolerate any further risk of harm” is to be understood as referring to the particular harm occasioned by offences of the kind committed by Mr Muggeridge in 1991 (reasons [55]). The Minister did not postulate about the harm that might be caused by some unspecified lesser type of offending.

Weight

41    It should be emphasised that it was uniquely for the Minister to determine whether the risk presented to the Australian community by Mr Muggeridge’s continued presence here was or was not “unacceptable” (reasons [59]). To the extent that a possibility of recidivism was lawfully identified by the Minister on the material before him, it would be open to the Minister to view that possibility as unacceptable so as to outweigh the very strong considerations that favoured a decision not to cancel the visa. It matters not that another decision-maker might have reasoned to a different conclusion on the same material upon which the Minister relied, and it forms no part of the role of a court on judicial review to supplant the decision-maker’s view of what is “reasonable” with that of its own: Stretton at [21] (Allsop CJ). The particulars of unreasonableness alleged by the appellant are to be rejected to the extent that they broadly challenge the relative weight ascribed by the Minister to the countervailing considerations before him: BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78.

42    This appeal turns on narrower questions.

43    The critical issues are whether the Minister’s inference that there was a possibility that Mr Muggeridge might re-offend in a similar fashion was one that was logically open to him to draw and, if not, whether any lapse in logic in respect of that question vitiates the decision to cancel Mr Muggeridge’s visa.

The risk of Mr Muggeridge re-offending in a similar fashion

44    When asked to identify the facts upon which the Minister concluded that it was possible that Mr Muggeridge might re-offend in a similar fashion, Counsel for the Minister pointed to two features of the reasons. First, reliance was placed on the inherently elevated risk that a person previously convicted of a criminal offence may offend again in the future. Second, it was said that the prior offence findings contained at [14] of the reasons provided an evident and intelligible justification for the Minister’s conclusion that the possibility of Mr Muggeridge re-offending in a similar fashion could not be “ruled out”. Each of these features will be considered in turn.

45    The propensity of a past offender to re-offend was said to be implicitly recognised in s 501 of the Act. Its consideration is, Counsel submitted, implicit in the reasons. The Minister was entitled to, and did in fact, reason from an assumption that a person who does not pass the character test is a person who is more likely to commit an offence in the future than an ordinary member of the community. Under that statutory framework, Counsel submitted, the Minister was not required to expressly identify any further “trigger” to support the conclusion that it was possible that Mr Muggeridge might re-offend. The Minster was entitled, even required, to consider the risk which the text of the statute implicitly recognises.

46    It is to be accepted that s 501(2) of the Act is purposive in the sense that it is directed (at least in part) to matters affecting the safety of the Australian community. However, to say that the statute implicitly recognises that all persons who have previously committed an offence are more likely to offend in the future is to state the implication too highly. As has already been observed, the circumstance that a person cannot satisfy the Minster that he or she passes the character test is the factual circumstance that enlivens the power to cancel the visa. The fact of prior offending will, in most if not all cases, invite consideration of the question of whether the person in question in fact presents some risk to the Australian community and the starting point in that consideration will invariably be the fact of the prior offending. But that is all. The statute does not, of itself, supply an answer to the factual question of whether a particular visa holder has a propensity, however slight, to re-offend.

47    If, in the exercise of the discretion, the Minister in fact addresses the question of harm by a process that includes a form of abstract propensity reasoning, the resulting decision could not, on that basis alone, be characterised as legally unreasonable. It is not inconsistent with the purpose of the power conferred by s 501(2) of the Act to reason in that fashion. The Minister’s submissions are to be accepted to that extent.

48    However, it is not to be presumed that the Minister has reasoned in a particular fashion in a particular case, merely because the manner of reasoning would be permissible.

49    On the facts of the present case, the Minister made express findings to the effect that Mr Muggeridge had not committed any offence since 1991, that he was fully engaged in his community, charitable and church activities, that he had loving family relationships, that he had explained his past offending by reference to his age and circumstances, that he had expressed remorse and that there was no evidence that he has had any affiliation with any outlaw motorcycle clubs since his return to Australia in 1997. Critically, on the basis of those facts, the Minister made a positive finding that Mr Muggeridge had demonstrated rehabilitation. In light of those concrete factual findings and the conclusion drawn from them, it cannot be concluded that the Minister implicitly found Mr Muggeridge to be a person having the propensities of a past offender to re-offend. Even if the starting point of the Minister’s reasoning was an unstated presumption that Mr Muggeridge had a propensity to offend, it is difficult to see how such an unstated concern could have survived the Minister’s express conclusion, properly based on the weight of the evidence, that Mr Muggeridge had demonstrated rehabilitation.

50    Nor is it apparent that the Minister relied on the past offence findings to justify his conclusion that the possibility of Mr Muggeridge re-offending in the same fashion could not be ruled out. The past offence findings do not logically inform the degree of likelihood of Mr Muggeridge re-offending in a similar fashion. As has been said, whilst the Minister was entitled to reason that a person who has previously committed a particular offence might similarly re-offend, that is not the reasoning in fact engaged in by the Minister, whether by reference to the past offence findings or otherwise.

51    Viewed in the abstract, there might be a logical connection between the past offence findings and the likelihood of similar re-offending had the Minister relied on evidence capable of supporting a conclusion that it was possible that Mr Muggeridge would resume contact with an outlaw motorcycle club. However, of themselves, the past offence findings are not capable of supporting that conclusion, especially in light of the Minister’s express favourable findings toward Mr Muggeridge.

52    Indeed, the primary position taken by the Minister on the appeal was that the Minister did not engage at all with the likelihood that Mr Muggeridge might resume contact with an outlaw motorcycle club. In that regard, Counsel referred to the Minister’s conclusion that “if Mr Muggeridge resumed contact with any outlaw motorcycle club, his likelihood of re-offending would increase”: reasons [25] (emphasis added). The Minister’s reference to the likelihood increasing should, it was submitted, be understood as merely an aside, the Minister having earlier concluded that the likelihood of Mr Muggeridge re-offending was “low”. The Minister did not, it was submitted, enter into the question of whether Mr Muggeridge would or may resume contact with outlaw groups in the community; he simply postulated, unnecessarily, that the risk already identified would be elevated in the event of Mr Muggeridge associating again with such a group. Given that a “low” likelihood was sufficient to justify the visa cancellation, it was said that nothing turns on the Minister’s failure to make an assessment of the likelihood that Mr Muggeridge would re-join a like club and so be more likely than he otherwise would to offend.

53    A submission to the same effect was accepted by the learned primary judge: Muggeridge at [48], [56] — [57].

54    The Minister’s submission ignores the critical feature of the cancellation decision identified earlier in these reasons: the conclusion that there was an unacceptable risk of Mr Muggeridge offending again “in a similar fashion” and so cause “great harm” (reasons [55]). As has already been observed, the visa was not cancelled on the basis of a low possibility of Mr Muggeridge committing unspecified types of offences, unrelated to his prior offending and involving a lesser degree of harm.

55    Although the Minister was not required to evaluate the risk of Mr Muggeridge re-offending in any particular way, the Minister did in fact embark upon an evaluation of Mr Muggeridge’s prospects of re-offending in a way that was acutely fact dependent. The reasoning adopted by the Minister in this case logically required an assessment to be made of the likelihood that Mr Muggeridge would resume contact with an outlaw motorcycle club and so offend “in a similar fashion” and thus cause “great harm”. In light of the Minister’s findings concerning Mr Muggeridge’s rehabilitation, his debilitating spinal injury and the lack of evidence of any affiliation with any outlaw motorcycle club since his return to Australia, the reasons do not provide any logical basis for concluding that there was a possibility that Mr Muggeridge would resume contact with such a club.

56    In the result, the Minister exercised the discretion in a manner that purported to advance an object of the statute, and yet there is no evident rational connection between that legitimate object and the particular materials upon which the Minister is said to have relied. A rational connection in a case such as the present should not depend upon unnatural implications drawn from the reasons that cannot be reconciled with the express findings concerning Mr Muggeridge’s demonstrated rehabilitation, his serious physical debilitation and the absence of evidence that he had had any connections with like motorcycle clubs for more than two decades.

False identity

57    It is immaterial that there might otherwise have been evidence before the Minister from which the Minister might have arrived at the same result by an alternative but untaken path of reasoning. In that regard, it has not been overlooked by this Court that the Minister viewed Mr Muggeridge’s conduct of living in Australia under a false identity to demonstrate a disregard for New Zealand and Australian immigration and criminal law. Importantly, however, it was not suggested by Counsel on this appeal that that finding was in fact drawn upon by the Minister to support the impugned conclusion at [55] of the reasons concerning the likelihood that Mr Muggeridge would re-offend in a similar fashion. The reasons themselves do not disclose that the Minister took the fake identity issue into account in his consideration of the likelihood of re-offending. Nor do the reasons indicate that the fake identity findings constituted a separate and independent justification for the decision to cancel the visa. Whether or not it might otherwise have been open on the evidence to cancel the visa is not necessary to decide. As the Full Court said in Singh at [47]:

This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The ‘intelligible justification’ must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the Court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that Court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not …

Conclusion

58    The illogicality affecting the decision goes to a critical matter upon which the exercise of the Minister’s discretion turned, namely the possibility of “great harm” to the Australian community presented by Mr Muggeridge’s continued presence here. The assessment of that possibility is not supported by the materials upon which the Minister is said on this appeal to have relied. The reasoning toward the outcome is sufficiently defective so as to render the decision legally unreasonable in accordance with the principles summarised earlier in these reasons.

59    The decision to cancel the visa should, accordingly be set aside and orders made providing for the immediate release of Mr Muggeridge from immigration detention.

60    The appeal should be allowed with costs.

Associate:    

Dated:    8 December 2017