FEDERAL COURT OF AUSTRALIA

Raibevu v Minister for Home Affairs [2020] FCAFC 35

ORDERS

THE COURT ORDERS THAT:

1.    Leave to rely on ground 2 of the amended notice of appeal filed on 17 June 2019 is refused.

2.    Leave to rely on ground 3 of the proposed further amended notice of appeal is refused.

3.    The appeal is dismissed.

4.    The appellant is to pay the respondent’s costs of the appeal, as agreed or taxed.

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

REASONS FOR JUDGMENT

THE COURT:

1    Mr Seremaia Raibevu is a citizen of Fiji. He arrived in Australia in 1995, aged 15 years. He has resided here since then as the holder of a visa granted under the Migration Act 1958 (Cth).

2    Mr Raibevu has been convicted of about 25 criminal offences in Australia. These include convictions in 2004 and 2008 for assaults against his de facto partner and a conviction in 2012 on four counts of Aggravated Sexual Assault – Break and Enter with Intent committed in September 2011. For the sexual offences, Mr Raibevu was sentenced to two terms of nine years imprisonment and two terms of six years imprisonment, to be served concurrently. As a result of the sexual offences and the sentences imposed for them, Mr Raibevu is a person who cannot satisfy the character test as defined in s 501(6)(a) of the Act.

3    On 1 February 2017, a delegate of the Minister for Home Affairs cancelled Mr Raibevu’s visa. That decision (the cancellation decision) was mandated by s 501(3A) of the Act and was made shortly before Mr Raibevu was eligible to apply for parole.

4    The Assistant Minister for Home Affairs (hereafter, the Minister) refused to revoke the cancellation decision in the exercise of the power conferred by s 501CA of the Act (the non-revocation decision). The Minister concluded that Mr Raibevu posed an unacceptable risk of harm to the Australian community and that the risk of harm outweighed other considerations favouring revocation of the cancellation decision.

5    Mr Raibevu made a belated application for judicial review of the Minister’s decision. The primary judge granted Mr Raibevu an extension of time to commence the application but dismissed it on its merits: Raibevu v Minister for Home Affairs [2018] FCA 2052 (Reasons). This is an appeal from that judgment.

6    For the reasons that follow, the appeal should be dismissed.

THE NON-REVOCATION DECISION

7    The Minister may revoke a decision to cancel a visa under s 501(3A) if the person makes representations in accordance with an invitation under s 501CA(3)(b) and the Minister is satisfied that the person passes the character test or that there is another reason why the decision should be revoked: Act, s 501CA(4).

8    Mr Raibevu was given a written invitation to make representations to the Minister about the cancellation decision in accordance with s 501CA(3)(b) of the Act, which he did. Among other things, Mr Raibevu claimed that he had been rehabilitated, that he would not reoffend and that he did not present a risk of harm to the Australian community. He did not (and could not) contend that he passed the character test.

9    The Minister was provided with a Departmental submission annexing a bundle of documents for his consideration. The annexures included a National Police Certificate specifying Mr Raibevu’s history of criminal offending and the sentences imposed on him. Also annexed was a transcript of remarks given by Judge Colefax of the District Court of New South Wales upon sentencing Mr Raibevu to imprisonment in 2012 for the sexual offences, as well as Mr Raibevu’s written representations to the Minister and the supporting documents he had provided.

10    In his reasons for decision, the Minister stated that he had considered all of the representations made by Mr Raibevu. He also said that in undertaking that task he had “assessed all of the information set out in the attachments” to the Departmental submission.

11    The Minister correctly concluded that Mr Raibevu could not pass the character test before turning to consider whether there was another reason why the original decision should be revoked.

12    The Minister found that revocation of the cancellation decision would be in the best interests of Mr Raibevu’s two minor children, then aged 16 and nine. He stated that he had treated the best interests of the children as a primary consideration in accordance with Article 3 of the United Nations Convention on the Rights of the Child. The Minister afforded less weight to the interests of the children including because Mr Raibevu had not had a close relationship with either of them for most of their childhoods and the older child would soon reach adulthood.

13    The Minister said that Mr Raibevu had resided in Australia for 23 years. He took the view that the Australian community may afford a higher tolerance of Mr Raibevu’s criminal conduct because of the length of time he had resided here. He said that Mr Raibevu had made positive contributions to the community for more than 10 years through his schooling, employment, sport and other activities. He said that Mr Raibevu had a close relationship with his immediate family. He accepted that Mr Raibevu’s removal from Australia would cause them to experience practical and emotional hardship and that Mr Raibevu would not cope well if he were to be separated from them.

14    The Minister referred to letters of support provided by Mr Raibevu’s friends and his church pastors attesting to his “honest and hardworking qualities”. He found that Mr Raibevu would experience difficulties establishing himself in Fiji, at least initially, but did not accept that he would face unacceptable hardship accessing services there. He said that Mr Raibevu had maintained his Fijian cultural identity and so should have a reasonable general familiarity with the culture of his home country.

15    The Minister then turned to assess the seriousness of Mr Raibevu’s past offending and the likelihood that he may reoffend. He expressly noted Mr Raibevu’s claim that he did not pose a risk of reoffending.

16    The Minister expressed the view that violent and sexual offences are very serious. He went on to describe the 2011 sexual offences and their effects on the victim in a level of detail consistent with the sentencing remarks. He found that Mr Raibevu had broken into the victim’s unit and sexually assaulted her over the course of more than an hour. It is not necessary to repeat the detail of the attack here. It is accepted that the offending had significant and long lasting effects on the victim.

17    The Minister noted that Mr Raibevu had “prior convictions for violent offending in 2004 (Common assault) and 2008 (Assault occasioning actual bodily harm – nine months imprisonment, suspended)”. The Minister said that whilst those offences were “much less serious” than the sexual assault convictions, they did “further illustrate a tendency towards violence”. The Minister found that the sentences imposed on Mr Raibevu for the sexual assault offences were a further indication of the seriousness of his violent offending:

40.    …  Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered that the court viewed the offending as very serious. I concur with that view.

41.    Overall, I consider that nature of Mr RAIBEVU’s violent offending, in particular his Aggravated sexual assaults in 2012, to be very serious.

18    Under the heading “Risk to the Australian community”, the Minister found that alcohol and substance abuse were the “main contributing factors” that had led to Mr Raibevu’s criminal conduct. He said that it was a positive sign that Mr Raibevu had acknowledged that. The Minister referred to prison records confirming that Mr Raibevu had participated well in a series of courses, including programs related to alcohol and drug abuse. However, the Minister expressed concern that following a previous offence for assault, Mr Raibevu had been subject to supervision by the Probation and Parole Service in 2005 and yet had not completely addressed the problems he had with alcohol:

… The fact that Mr RAIBEVU has reoffended despite previously undergoing treatment and supervision for alcohol abuse gives me pause in accepting that his more recent training and counselling will necessarily prevent him returning to alcohol once outside the closely supervised prison environment.

19    The Minister said that Mr Raibevu’s claimed rehabilitation had occurred during the period when he was in prison or immigration detention and was “yet to be tested in the community”.

20    The Minister referred to the community activities that Mr Raibevu may engage in if he were released into the community. He acknowledged that Mr Raibevu had “expressed a desire to become a better person and to learn from his past mistakes and that a considerable number of those who know him believe that he is completely genuine in this and has changed substantially since coming to prison”.

21    The Minister noted that Mr Raibevu had pleaded guilty to the sexual assault charges and that he had stated that he was remorseful for his offending and was sorry for what he had done to the victim and her family, however, he said:

… I note that, despite stating his concern for the effect of his offending on the victim, his statements go on to discuss the adverse impacts on his own family, without expressing any appreciation for the very serious and long term impacts on the victim from what he refers to as ‘one single night of madness’. I further note that his statements make no reference to his prior convictions for domestic violence against another de facto partner, on two occasions, which the Judge in 2012 called serious acts of violence. I acknowledge Mr RAIBEVU’s remorse, but I have some doubts about his insight into his offending.

22    The Minister acknowledged that Mr Raibevu had made changes to his life and outlook “with the result that the chances of his reoffending are now much lower than before he was imprisoned”. The Minister nonetheless retained “some reservations” about the risk of reoffending, noting “his history of other violence against women, his failure to take advantage of rehabilitation opportunities in the past and his as yet untested ability to refrain from alcohol when in the general community in circumstances where alcohol use is tied to his offending”.

23    The Minister concluded:

60    … I find that the Australian community could be exposed to significant harm should Mr RAIBEVU reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr RAIBEVU.

61    I am cognisant that where significant harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa, even applying a higher tolerance of criminal conduct by Mr RAIBEVU, than I otherwise would, because he has lived in Australia for most of his life.

24    The Minister described the risk of reoffending as “unacceptable”. He said that the protection of the Australian community outweighed the best interests of his children and the other favourable considerations he had described.

THE JUDICIAL REVIEW APPLICATION

25    To succeed on the application before the primary judge it was necessary for Mr Raibevu to show that the Minister’s decision was affected by jurisdictional error: Act, s 474, Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

26    There were four grounds of review.

27    The first ground alleged that the Minister’s conclusion that Mr Raibevu presented an unacceptable risk of harm to the Australian community was legally unreasonable. The particulars to that allegation (extracted at [48] below) asserted that the Minister had ignored parts of the sentencing remarks.

28    The second ground of review was to similar effect. It alleged that the outcome was “not evident or transparent” by reason of the Minister having only selective regard to the sentencing remarks.

29    The primary judge said that the reasons of the Minister contained no express reference to those parts of the sentencing remarks that had been particularised by Mr Raibevu. His Honour nonetheless concluded that it could not be inferred that the Minister had not read and considered the remarks in their entirety: Reasons, [17]. His Honour said that the Minister had no obligation to refer in his written reasons to “every individual statement which may be found in an annexure to a Departmental submission”: Reasons, [20]. His Honour said that the question of whether the failure to refer to evidentiary material in the course of written reasons constitutes jurisdictional error depended on the particular facts and circumstances and concluded (Reasons, [23]):

… On the facts of the present case, however, it is the detailed reliance placed upon materials found within those sentencing remarks which supports the conclusion that consideration was in fact given to the entirety of the sentencing remarks and not merely those matters to which express reference is made in the reasons. To the extent that other matters were not referred to expressly in the reasons of the Assistant Minister in the present case – such as the penalty of a good behaviour bond being imposed for the 2004 conviction rather than a term of imprisonment – such matters did not [require] express reference in the reasons provided.

30    The primary judge held that the reasoning of the Minister was adequately explained and the outcome could not be characterised as one “which no rational or logical decision maker could arrive [at] on the same evidence”: Reasons, [26], citing Attorney General (NSW) v Quin (1990) 170 CLR 1 at 36 – 37 (Brennan J); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] (Crennan and Bell JJ).

31    The third ground alleged that the Minister had failed to have regard to the protection of the Australian community in that he had failed to consider and address the likelihood of reoffending, relied on supposition rather than evidence of risk and failed to “consider the evidence going to the risk and degree of risk” posed by Mr Raibevu. Rejecting that ground, the primary judge held that the Minister did consider the materials that were relevant to the assessment of the risk of Mr Raibevu reoffending and made an assessment of the risk that was open to be made on the facts: Reasons, [29] – [33]. To the extent that Mr Raibevu had complained of a failure to consider the complete sentencing remarks in support of this ground, the complaint was rejected for the same reasons given in relation to the first and second grounds: Reasons, [34].

32    The fourth ground alleged that the Minister’s decision was affected by legal unreasonableness more generally in that:

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

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

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

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

Further particulars

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

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

    ii)    the Applicant committed the sexual offence in 2012

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

    iv)    Applicant had a very strong family and church ties

v)    Applicant has two young children who are Australia[n] Citizen[s].

33    As can be seen, the particulars in (a) and (b) are concerned with the assessment of the degree of risk and so had been substantially addressed. The particulars in (c) and (d) concern different subject matter.

34    The primary judge said that Mr Raibevu’s reliance on the matters particularised in this ground was misconceived: Reasons, [37]. His Honour said that any delay by the Minister’s delegate in making the cancellation decision under s 501(3A) of the Act did not constitute error by the Minister in connection with the non-revocation decision made pursuant to s 501CA(4). The non-revocation decision had not in fact been attended by delay in any event. His Honour said that the circumstance that a cancellation decision is made towards the conclusion of a term of imprisonment does not, without more, evidence an excess of power: Reasons, [38].

35    As to the differences between the sexual offences and the earlier assault offences, the primary judge said that the complaint about the absence of any reference to Mr Raibevu being given a good behaviour bond in relation to the first assault offence had already been rejected. His Honour concluded that the Minister had otherwise taken into account the matters raised in the ground for judicial review.

OUTCOME OF THE APPEAL

36    Mr Raibevu was legally represented by a solicitor and Counsel on the hearing of the appeal.

37    As originally cast, the notice of appeal alleged that the primary judge erred in rejecting the first ground for judicial review.

38    On 17 June 2019 the appellant filed an amended notice of appeal, without first obtaining the leave of the Court to do so. The original ground was abandoned and two newly cast grounds were proposed.

39    Then, on the evening before the hearing of the appeal, Counsel for the appellant forwarded a proposed further amended notice of appeal. It contained a third proposed ground.

40    Counsel for Mr Raibevu contended that leave was not required to rely upon the first ground of appeal because it raised the same arguments that had been advanced at first instance. So interpreted, this ground has no merit for the reasons given at [44] to [77] below.

41    The arguments underpinning the proposed second and third grounds were not advanced before the primary judge. We declined to grant leave in relation to the proposed third ground in the course of the hearing and our reasons for doing so are now given at [82] to [101] below.

42    The question of leave in relation to the second proposed ground was reserved. For the reasons given at [102] to [123] below, leave to rely on that proposed ground is also refused.

43    It follows that the appeal must be dismissed.

NEW GROUND 1

44    The newly cast first ground is expressed in broad terms as follows:

Ground 1: The primary judge erred by finding that the respondent did not misapply the relevant statutory principles regarding the decision not to revoke the cancellation of the appellant’s visa.

1.    The decision by the respondent (Assistant Minister) made on 24 July 2018 pursuant to section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) was vitiated by jurisdictional error as the Assistant Minister either misapplied the relevant law and/or failed to give genuine, proper or realistic consideration to the appellant’s claims and/or the Assistant Minister’s decision lacked evident and intelligible justification by finding that there were no other reasons why, the original decision by the delegate to the Minister made on 1 February 2017 to cancel the appellant’s Class AO Subclass 802 (Child) visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) should not be revoked.

45    There follow 21 paragraphs of “particulars” numbered [1(a)] to [1(t)] (one number is duplicated). The particulars continue for some eight closely typed pages. Seven of them allege jurisdictional errors affecting the Minister’s decision. Others do no more than to extract portions of the Minister’s reasons. There is then a page alleging appealable error on the part of the primary judge in rejecting the first to fourth grounds for judicial review (“particulars” [1(o)] to [1(t)]).

46    The Minister complains that the first ground is so prolix and vague that it is difficult to determine the exact scope of the appeal. That is a justifiable complaint. The written submissions do not serve to clarify or narrow the issues. They do little more than to repeat the text of the first ground.

47    It nonetheless appears that the appellant intends to allege that the primary judge erred in rejecting each of the four grounds for judicial review. That is done by the inappropriate device of “particulars” [1(o)] to [1(t)]. In the circumstances, the first ground of appeal will be interpreted narrowly so as to introduce no new issue on the appeal. The particulars will be considered to the extent that they fairly reflect arguments advanced at first instance. They may otherwise be ignored.

The risk of reoffending

48    The first ground for judicial review alleged that the Minister “ignored key evidence supporting Mr Raibevu’s case” when making his assessment of the risk that he might reoffend. The “key evidence” comprised eight matters disclosed in the 2012 remarks of the sentencing judge that were said to weigh in Mr Raibevu’s favour, namely:

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

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

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

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

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

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

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

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

49    Whether the Minister failed to have regard to the whole of the sentencing remarks is a question of fact. At least at first instance, it was argued that the failure may be inferred from the absence of any reference in the Minister’s reasons to the particularised matters.

50    The primary judge declined to draw that inference, both because the matters were not of the kind that the Minister was obliged to include in his reasons and because the reasons otherwise disclosed an awareness of the matters in any event.

51    The primary judge was correct to reject the ground as unmeritorious.

52    The Minister was plainly obliged to consider the representations Mr Raibevu had made about why the cancellation decision should be revoked, including his assertion that he had been rehabilitated and so no longer posed a threat to the Australian community. The Minister did have regard to that question. A significant portion of his reasons is devoted to it. What was complained of by the first ground of review was not so much a failure to consider a critical issue, but a failure to have regard to certain evidence in the course of determining it.

53    The significance of the distinction is discussed by the Full Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (French, Sackville and Hely JJ), albeit in the context of a review by the Administrative Appeals Tribunal of a decision to refuse to grant a protection visa:

46    It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

47    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

54    In Lyons v Minister for Immigration and Border Protection [2017] FCA 1381, Collier J held that the failure of the Minister in that case to have regard to favourable matters disclosed in the remarks of a sentencing judge constituted jurisdictional error. The matters ignored by the Minister in that case included material informing a proper assessment of the objective seriousness of the offence, reflected in the circumstance that the non-citizen’s sentence of 12 months imprisonment (for an offence carrying a maximum penalty of 14 years imprisonment) had been wholly suspended. Her Honour said that if the Minister has regard to the comments of a sentencing Judge, he is not entitled to do so selectively. Such selectivity was unreasonable, her Honour said, “because it leads to an outcome which is not evident or transparent” (at [28]). It is implicit in her Honour’s reasons that the matters not adverted to in the Minister’s reasons were of such potential significance that the failure to make reference to them in giving reasons evidenced “cherry picking” of the evidence and so exposed error.

55    In the present case, the primary judge acknowledged that there may be cases in which the absence of a reference to relevant evidence in the written reasons of the Minster may disclose jurisdictional error. The decision in Lyons, his Honour said, was “a useful reminder that reasons provided should be read in a context which recognises that the omission of references to some matters may evidence a failure on the part of a decision-maker to consider those matters” and that such a failure may expose legal error. His Honour continued (at [23]):

…  On the facts of the present case, however, it is the detailed reliance placed upon materials found within those sentencing remarks which supports the conclusion that consideration was in fact given to the entirety of the sentencing remarks and not merely those matters to which express reference is made in the reasons. To the extent that other matters were not referred to expressly in the reasons of the Assistant Minister in the present case – such as the penalty of a good behaviour bond being imposed for the 2004 conviction rather than a term of imprisonment – such matters did not [require] express reference in the reasons provided.

56    There is no appealable error in that conclusion. The eight matters raised in the particulars to the first ground of review were either expressly adverted to by the Minister or were otherwise subsumed in the greater generality of the Minister’s findings or were of such minor significance that a failure to advert to them could not support an inference that they were ignored. It is convenient to give some attention to each of the matters as they inform this Court’s assessment of other issues arising on the appeal.

57    The first and second matters are that Mr Raibevu had pleaded guilty to the sexual offences (so avoiding the need for the victim to relive the sexual assault in the context of a trial) and that he had received a 25% discount on each sentence for the pleas. The Minister’s reasons expressly acknowledged Mr Raibevu’s guilty plea and his claim to be remorseful. In the result, the Minister accepted that Mr Raibevu was remorseful, although his expressions of regret had focussed on the impact his offending had had on his own family and less so on the victim. Considered in context, the circumstance that in 2012 Mr Raibevu had received a 25% discount on his head sentence because his guilty plea was not of such significance that the Minister’s failure to expressly advert to it could amount to, or demonstrate, jurisdictional error.

58    The third matter relates to the reasons why Mr Raibevu had been unable to take steps to rehabilitate himself whilst on remand. The Minister did not criticise Mr Raibevu for failing to access rehabilitative services at times when the services were not available to him. Rather, the Minister found that Mr Raibevu had earlier been provided with supervised opportunities to address his problems with drugs and alcohol before he had committed the sexual offences. That circumstance gave the Minister an intelligible reason to doubt the future effectiveness of the courses Mr Raibevu had undertaken whilst in prison.

59    The fourth matter is an assertion that Mr Raibevu’s previous criminal convictions were not similar to the sexual offences he committed in 2011. The Minister made no finding that Mr Raibevu had previously committed offences of a sexual nature. He did, however, conclude that Mr Raibevu’s prior convictions involved violence against women. That conclusion was plainly open to be drawn on the materials. The Minister expressly acknowledged that the earlier assault offences were less serious than the sexual offences. The absence of any reference in the Minister’s reasons to the dissimilar features of the past offences does not demonstrate error.

60    The fifth and seventh matters are that the sentencing judge was “inclined to think” that Mr Raibevu’s prospects of rehabilitation were reasonable and so imposed a lower non-parole period than might otherwise have been imposed.

61    The Minister’s task was to make an assessment of the risk of reoffending at the time of his own decision, not at the time that Mr Raibevu was sentenced in 2012. The Minister expressly referred to the length of the non-parole period fixed by Judge Colefax some five years prior. In the result, the Minister said that the chance that Mr Raibevu might reoffend had reduced since his imprisonment but noted that Mr Raibevu’s claim to have been rehabilitated had not been tested in the community. Those conclusions are not inconsistent with the views expressed by the sentencing judge about Mr Raibevu’s prospects of rehabilitation, assessed as they were at an earlier time. Any failure to refer to the prospective views of the sentencing judge cannot constitute jurisdictional error.

62    The sixth and eighth matters are that Mr Raibevu’s sentences of imprisonment for the sexual offences were ordered to be served concurrently and that he received a non-custodial sentence for the common assault he committed on his de facto partner in 2004. The Minister was plainly aware that the terms of imprisonment were to be served concurrently. The sentences are recorded on the National Police Certificate to which the Minister expressly referred. The Minister expressly noted that whilst under supervision in the community in 2004, Mr Raibevu had failed to address the drug and alcohol problems that had contributed to his offending behaviour. The circumstance that Mr Raibevu received a good behaviour bond in respect of the 2004 assault could not preclude the characterisation of the offence as an act of violence against a woman.

63    The Minister described the sexual offences Mr Raibevu had committed in 2011 at a level of detail consistent with the sentencing remarks. On the uncontested facts, Mr Raibevu broke into a woman’s home and raped her. The offending persisted for more than an hour, ending only after the victim managed to escape. As has been said, his offending had serious and long lasting impacts on the victim. The Minister viewed the offending as very serious, as he was clearly entitled to do. Viewed in that context, it is not difficult to see why no express reference is made to the fact that a good behaviour bond was imposed in relation to a 2004 assault offence. It was incontestable that Mr Raibevu had gone on to commit a more serious offence despite the leniency previously extended to him in his earlier forays in the criminal justice system.

64    In oral submissions, Counsel went so far as to submit that the 2004 and 2008 assault convictions were irrelevant to the Minister’s task because they were not the offences that had resulted in Mr Raibevu being unable to pass the character test. That submission finds no support in the authorities and cannot be accepted as a matter of common sense. The Minister was clearly entitled to have regard to the whole of Mr Raibevu’s criminal history in determining whether there was a reason to revoke the cancellation decision.

Legal unreasonableness

65    The conclusions we have drawn above are sufficient to dispose of the contention that the primary judge erred in rejecting the first to third grounds for judicial review. They also provide an answer to that part of the fourth ground that challenged the Minister’s assessment of Mr Raibevu’s risk of reoffending.

66    The fourth ground for judicial review also contained a broad complaint about the ultimate outcome under the heading “Particulars” (extracted at [32] above). On appeal, arguments in relation to unreasonableness strayed considerably from the particulars given for this ground at first instance.

67    The circumstances in which an administrative decision may be vitiated for legal unreasonableness are defined by well-established legal principles. The authorities were summarised by the Full Court in Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 at [35] (Charlesworth J, Perry and Flick JJ agreeing). In the context of a decision to cancel a visa on character grounds in the exercise of the power conferred by s 501(2) of the Act, the Court said:

(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 (Singh);

(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) 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].

68    As the outcome in Muggeridge shows, a decision to cancel a visa on character grounds may be affected by legal unreasonableness where it is demonstrated that the decision-maker had concluded that a non-citizen had been rehabilitated and yet draws the contradictory conclusion that the non-citizen presented a risk of reoffending. Such a decision may be said to involve illogicality or to otherwise have no evident or intelligible justification.

69    However, the task of a court exercising powers on judicial review is to not import or substitute its own view of the most objectively reasonable outcome. As Allsop CJ said in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (at [21]):

The difficulty with the reasoning [of the primary judge] is that it is expressed as the primary judge’s view as to what was reasonable. He, himself, makes an evaluation of what is necessary for the protection of the Australian community, principally, if not wholly, however, by reference to the young children in Mr Stretton’s immediate family. It would seem that this approach was brought about by a view of the need for the assessment to be objectively unreasonable. This does not carry with it the authority for the Court to reach its own view of what is reasonable or not, or what is necessary, and then, without more, to supplant the view of the Minister. It is not a correct approach for the Court on judicial review to assess the lawfulness of the decision under s 501 by asking whether the exercise of discretion was necessary for the purpose. That an assessment whether the decision-maker’s conclusion was legally unreasonable may involve some consideration of disproportionality does not authorise the Court to decide for itself what is necessary for the relevant purpose and to declare a decision beyond that assessment as unreasonable. The correct question, or perspective, if one is looking at the outcome in question, is not whether the Court thinks the decision is reasonable, or necessary for the purpose, or not, as the case may be; rather it is whether a decision-maker could reasonably come to the conclusion. …

70    Considered against these principles, the arguments advanced on behalf of Mr Raibevu may be divided and considered in two categories.

71    Arguments in the first category were to the effect that the Minister’s conclusion that Mr Raibevu posed a risk to the Australian community had no support in the evidence and was otherwise illogical.

72    It was submitted the successful completion by Mr Raibevu of a series of courses whilst in prison positively demonstrated that he had turned his life around whilst in prison. Counsel went so far as to submit that the Minister was required to infer that Mr Raibevu had been rehabilitated because to conclude otherwise would offend principles of sentencing: as rehabilitation was a purpose of Mr Raibevu’s term of imprisonment, it followed that he had in fact been rehabilitated. The Minister’s conclusion that Mr Raibevu might reoffend was “speculative”. These arguments must be rejected.

73    The Minister took into account the courses Mr Raibevu had completed, then turned to consider the likely effectiveness of the courses should Mr Raibevu be released into the community. The Minister was plainly entitled to have regard to past events when making that assessment, particularly Mr Raibevu’s failure (before his imprisonment) to address the drug and alcohol problems that had contributed to his offending behaviour. In light of the opportunities previously provided to Mr Raibevu to address his substance abuse problems, it was plainly open to the Minister to conclude that the possibility of reoffending could not be ruled out. As the Full Court said in Muggeridge (at [36]):

… 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.

74    Next it was submitted that the Minister’s reasons were internally inconsistent and therefore illogical. The alleged inconsistency was that the Minister had concluded that Mr Raibevu had in fact been rehabilitated but had nonetheless concluded that he posed a risk to the Australian community. These submissions misstate the Minister’s reasons. Whilst the Minister acknowledged that Mr Raibevu had claimed to have been rehabilitated, the Minister’s conclusion in respect of that claim was that the possibility of reoffending could not be ruled out.

75    The arguments in the second category amounted to a multi-faceted criticism of the objective reasonableness of the outcome. The arguments were expressed in heightened language and with minimal reference to evidentiary material or recognised legal principles. They included the following:

(1)    the decision amounted to “abject cruelty” and “absolute ludicrous madness”;

(2)    the decision was one that “no one could possibly agree with …  No one except another conservative”;

(3)    the effect of the decision was that Mr Raibevu was “condemned to be separated from his beautiful family and his children”;

(4)    there “must be a time for forgiveness. There must be time for serving your time” and “there has got to be a presumption of innocence in all this”;

(5)    the effect of the decision was to subject Mr Raibevu to three years in immigration detention and so “punish” him further for his past offending and future offences he had not committed; and

(6)    the Minister had in “a cynical move” cancelled Mr Raibevu’s visa shortly before he would otherwise have become eligible to apply for parole “because the Minister perhaps didn’t want to see the parole reports that he is rehabilitated”.

76    It is not necessary to exhaustively list all arguments of this kind, nor to deal with them separately. Considered together, they demonstrate a serious misapprehension of the task of a court exercising powers of judicial review. To accept the submissions would be to err in the manner identified by Allsop CJ in Stretton in the passage extracted at [69] above.

77    The first ground of appeal must be rejected.

PROPOSED NEW GROUNDS 2 AND 3

78    The Court has the discretion to allow the introduction of the new grounds if it be “expedient in the interests of justice” to do so: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; 190 ALR 543 at [18] (Hill, O’Loughlin and Tamberlin JJ); VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ).

79    As Lander J said in SZKMS v Minister for Immigration and Citizenship [2008] FCA 499, leave to introduce new grounds on appeal from a judgment may be refused even in circumstances where the respondent on the appeal would not be prejudiced by the grant. His Honour said (at [30]):

… There are good reasons why this Court should not be made de facto the Court of original jurisdiction when sitting on appeal. Otherwise its role as an intermediate Court of Appeal will be undermined. The High Court should not be burdened by applications for leave to appeal from decisions of this Court which have not been reviewed.

80    For Mr Raibevu it was submitted that the grounds were meritorious and should be ventilated on the appeal because of the grave consequences for Mr Raibevu if the Minister’s decision were not set aside.

81    It is convenient to first explain why leave to rely on proposed ground 3 was refused on the day of the hearing.

Proposed Ground 3

82    A further amended notice of appeal was emailed by Counsel for Mr Raibevu to the Chambers of the members of the Court after 5 pm on the day before the hearing of the appeal. It introduced, for the first time, a proposed new ground 3. The email was accompanied by amended written submissions, then totalling 23 closely typed pages. Counsel did not seek to be excused from compliance with the Court’s previous orders as to the length and presentation of submissions. The email stated: “My apologies for the delay. The appellant consents to the Minister filing further written submissions in reply”. No explanation was given for the delay.

83    On the morning of the hearing, Counsel sent a further email to the Court containing an amendment to the proposed new ground 3.

84    As amended, the proposed ground is as follows:

Ground 3: The respondent failed to examine entirely the operation of the Migration Act 1958 (Cth) and Australia’s international non-refoulement obligations

3    The appellant seeks leave to rely on a new ground three that was not articulated before the primary judge that the decision by the respondent on 24 July 2018 not to revoke the cancellation of the appellant’s Class AO Subclass 802 (Child) visa was affected by jurisdictional error. The non-revocation decision by the respondent pursuant to section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) was vitiated by jurisdictional error from [25]-[29] of the decision record, as the respondent failed to consider entirely from [25]-[29], an integer of the appellant’s claims that he will face a lifetime on the sexual offenders scheme in Fiji within the category of ‘the extent of impediments if returned. Further, the respondent failed to consider entirely the appellant’s claims of harm within the concept of non-refoulemement and the international obligations framework, thereby denying the appellant procedural fairness and/or, the respondent constructively failed to exercise jurisdiction, and/or failed to carry out the statutory task required by section 501CA(4) of the Migration Act 1958 (Cth).

85    There are three pages of “particulars”. It is not necessary to extract them here.

86    The essence of the argument, as advanced in oral submissions, was that the Minister had committed jurisdictional error by failing to consider and conclude that upon his return to Fiji, Mr Raibevu would be identified as a sex offender and would be legally obliged in any event to report his sexual offending to authorities there. It was asserted that his name would be placed on a register of sex offenders and he would be subject to controls on his civil liberties by virtue of that status. It was submitted that by reason of his sexual offending, the authorities in Fiji may cancel Mr Raibevu’s visa. It was submitted that the adverse effects of the sex offenders regime in Fiji was an “essential integer” of the claims Mr Raibevu had made to the Minster as to why the cancellation decision should be revoked. In support of these submissions, Counsel sought to rely on new evidence to prove the existence of the sex offenders’ regime and its likely impact on Mr Raibevu.

87    It is well established that where a tribunal exercising powers of merits review fails to make a finding on “a substantial, clearly articulated argument relying on established facts”, that may amount to a constructive failure to carry out the review required of the tribunal and so constitute jurisdictional error: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 at [24] (Gummow and Callinan JJ, Hayne J agreeing at [95]). And, as the Court said in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (Black CJ, French and Selway JJ (at [63), and see generally [55], [58] – [61], [68]):

…  It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances.  …

88    In Hong v Minister for Immigration and Border Protection [2019] FCAFC 55 at [66] (Bromwich and Wheelahan JJ) the same principles were applied in the context of an application for merits review of a decision made by a delegate of the Minister under s 501CA(4) of the Act not to revoke a cancellation decision made on character grounds. For present purposes, the requirement to properly apprehend and consider each “claim” may be assumed to condition the personal exercise by the Minister of the power conferred by s 501CA(4). On that assumption, it would be necessary to consider the issues that were either expressly articulated or otherwise clearly raised on the evidentiary materials, having particular regard to the reasons Mr Raibevu had advanced as to why the cancellation decision should be revoked.

89    When tested against these principles, the proposed ground 3 was shown to be lacking in merit.

90    The only material relied upon in support of the contention that Mr Raibevu had raised with the Minister a “claim” that he would be subject to a sex offenders’ regime if returned to Fiji was the response he had given on a standard form when making representations to the Minister under s 501CA(3)(b) of the Act. When asked “Do you have any concerns or fears about what would happen to you on return to your country of citizenship?”, Mr Raibevu stated:

UNCERTAINTY/MY FEAR OF THE UNKNOWN AND IM CONCERN ABOUT MY FUTURE: AUSTRALIA IS HOME TO ME OR IS WHERE I CALL HOME.

91    There is no express reference in Mr Raibevu’s response to any difficulties he might face by reason of his status as a sex offender, nor does there appear to be any proper basis to argue that an unarticulated claim (or integer of a claim) clearly arose on a proper consideration of the material as a whole.

92    To the extent that it is alleged that there is a risk that Mr Raibevu’s visa may be cancelled by the Fijian government, the allegation has no proper factual or legal foundation. Mr Raibevu is a citizen of Fiji. He has never asserted otherwise. He does not require a visa to re-enter that country.

93    Moreover, proof of the underlying facts in relation to the sex offenders’ regime depends upon the grant of leave to adduce evidence in this Court that was not before the Minister at the time that the decision was made, and not before the primary judge on the application for judicial review. To the extent that it was submitted that the Minister was under an inviolable duty to seek out and obtain the material, no proper legal basis for the submission was articulated.

94    The application for leave was not supported by any evidence to explain why the argument now sought to be run was not advanced in the proceedings at first instance. It appears from the Reasons of the primary judge that Mr Raibevu appeared unrepresented at the hearing of his application for judicial review. However, the Reasons also indicate that when he appeared before the primary judge on 18 October 2018, a solicitor named Mr Quro (who had not filed a notice of appearance) sought an adjournment to enable him to prepare submissions on Mr Raibevu’s behalf. An adjournment was granted for that purpose. An application for an extension of time to commence this appeal was filed on 21 February 2019. On its face, it appears that document was prepared by Kemu Quro of the firm Quro Lawyers. That firm did not file a notice of acting until some two months later.

95    These circumstances called for a frank explanation from Mr Raibevu and his legal advisors as to the legal assistance he received at the judicial review stage. In the absence of an explanation, it may be inferred that attention had in fact been given to the grounds available to be argued at first instance by those who were legally qualified to make that assessment: AAD16 v Minister for Immigration and Border Protection [2018] FCA 1433 at [26] – [27] (Charlesworth J). At the very least, any assertion that the appellant had no legal assistance is one that cannot be accepted at face value.

96    The application for leave in relation to this ground was not notified to the Court or the Minister’s lawyers until after 5 pm on the day before the appeal was due to commence. The late raising of the argument occurred against a background in which the appeal had previously been set down to be heard in the August 2019 appellate sittings, but was adjourned to accommodate personal difficulties experienced by Mr Raibevu’s Counsel. The late emailing of the proposed new ground affords the representatives of the Minister insufficient time to address it. It is not to the point that the appellant would consent to the Minister being afforded an opportunity to file submissions in response. To afford the Minister that opportunity would have the consequence that the hearing must again be adjourned.

97    When asked why the proposed ground had been raised so late, Counsel took umbrage at the question. He then submitted that he had been very busy since December and so had been unable to commence preparations for the appeal at an earlier time. Counsel submitted that he had a duty to his client to run the argument once he had identified it.

98    That is not a complete statement of Counsel’s duties.

99    This Court made orders for the proper case management of the appeal on 18 March 2019. Counsel’s duty was to ensure that Mr Raibevu complied with the orders or to seek a dispensation from them if compliance was not possible. Counsel’s duty was to commence his preparations for the hearing of this appeal well in advance of the hearing so that if a compelling new argument was identified (as sometimes may occur) an application for leave to introduce the ground may be made in a timely way. As to the assertion that Counsel was overburdened with work, Counsel’s duty was to not accept a new brief if to do so would render him unable to diligently attend to the preparation of this matter, or to cease acting in sufficient time to enable Mr Raibevu’s solicitor to engage alternative counsel who could.

100    Weighing in favour of the grant of leave is the nature of the Minister’s decision and its impact on Mr Raibevu. Also relevant is the circumstance that defaults in the preparation of his case are the defaults of those who have undertaken to render him legal advice and assistance. There is no suggestion that Mr Raibevu is personally responsible for the circumstances described in these reasons.

101    Notwithstanding those considerations, in all of the circumstances we have described, it was not expedient in the interests of justice to allow the unmeritorious argument to be agitated for the first time on the appeal.

Proposed ground 2

102    Before turning to the substance of this proposed ground it is necessary to explain the legal basis for Mr Raibevu’s incarceration at relevant times.

103    Mr Raibevu was remanded in custody upon being charged with the sexual offences. The concurrent sentences of nine and six years imprisonment were imposed by a judge of the District Court of New South Wales in the exercise of powers conferred by the Crimes (Sentencing Procedure) Act 1999 (NSW). In the ordinary course, Mr Raibevu would have been eligible to apply for conditional release from corrective custody on or before 24 March 2017 in accordance with the terms of Div 1 of the Crimes (Administration of Sentences) Act 1999 (NSW). The power to determine any such application was conferred on the Parole Board of New South Wales.

104    The cancellation decision was a decision mandated by s 501(3A) of the Act. Upon being satisfied that Mr Raibevu did not pass the character test, the Minister’s delegate was legally obliged to cancel the visa. That was done on 1 February 2017.

105    The consequence of the cancellation decision was that Mr Raibevu was an unlawful non-citizen for the purposes of s 189(1) of the Act. It provides:

If an officer knows or reasonably suspects that a person in the migration zone … is an unlawful non-citizen, the officer must detain the person.

106    The word “detain” is defined in s 5 to mean:

(a)    take into immigration detention; or

(b)    keep, or cause to be kept, in immigration detention;

and includes taking such action and using such force as are reasonably necessary to do so.

107    Pursuant to these provisions, Mr Raibevu was removed from corrective custody and taken into immigration detention at the Villawood Detention Centre on or around 8 February 2017. As a consequence, Mr Raibevu was unable to make an application to be conditionally released from corrective custody upon the expiration of the non-parole period.

108    It is against that background that Mr Raibevu now seeks to rely on proposed ground 2. It is expressed as follows:

Ground 2: The respondent misapplied the relevant law with regard to the decision by the respondent on 24 July 2018 not to revoke the cancellation of the appellant’s Class AO Subclass 802 (Child) visa

2.    The appellant seeks leave to rely on a new ground two that was not articulated before the primary judge that the decision by the respondent on 24 July 2018 not to revoke the cancellation of the appellant’s Class AO Subclass 802 (Child) visa was affected by jurisdictional error as (i) the cancellation of the visa by the delegate to the respondent on 1 February 2017 was in violation of the orders by the District Court that the appellant to serve a lengthy parole period; (ii) the appellant was denied an opportunity of further supervision and rehabilitation during the parole period; (iii) the respondent could not properly evaluate whether there was a risk that the appellant will reoffend, without the appellant being granted the opportunity to further supervision and rehabilitation during the parole period. In turn, the executive decision by the delegate to cancel the visa and the executive decision by the respondent not to revoke that decision, interfered with the administration of justice that the appellant serve a lengthy parole period, in violation of the separation of powers doctrine under Chapter III of the Constitution.

109    This proposed ground was included in the further amended notice of appeal emailed to the members of the Court on 9 February 2020. It asserts several discrete jurisdictional errors. It, too, is supported by lengthy “particulars” which appear to allege further discrete errors, including an allegation that the Minister failed to have regard to a report of the New South Wales Department of Corrective Services dated 17 January 2017 ([2(c)]), failed to take into account that Mr Raibevu would have been on parole if the revocation decision was made and would be subject to supervision ([2(e)]) and denied Mr Raibevu procedural fairness “and the respondent did not have the benefit of any decisions or reports of the parole board to grant the appellant parole” ([2(f)]). The particulars otherwise do no more than to assert background facts and to repeat the words of the ground.

110    The content of the argument in connection with the Constitution was diffuse and unclear. We take it has having these two elements:

(1)    The Minister’s decision under s 501CA(4) had the effect of undermining the institutional integrity of the District Court of New South Wales and so offended the principle stated by the High Court in Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51. This was because that Court had examined the prospects of Mr Raibevu’s rehabilitation and had concluded that he should be released upon the expiry of the non-parole period. The effect of the Minister’s decision to put Mr Raibevu in immigration detention was to frustrate the carefully considered conclusion of the District Court that the administration of justice required the appellant’s release into the community in the following month.

(2)    If the Minister’s decision under s 501CA(4) did not interfere with the institutional integrity of the District Court, then it instead had the effect of frustrating the exercise of the Parole Board’s power to order Mr Raibevu’s release. The Parole Board was to be seen as a key component in the administration of criminal justice in New South Wales. The administration of criminal justice was a core responsibility of the States. An intrusion into such a core area was invalid to the extent that it destroyed or curtailed the continued existence of the States or their capacity to function: Melbourne Corporation v Commonwealth (1947) 74 CLR 31.

111    Both arguments suffer from a significant initial difficulty.

112    The Minister’s decision made on 24 July 2018 under s 501CA(4) was a decision not to revoke the earlier decision of the delegate made on 1 February 2017 to cancel Mr Raibevu’s visa under s 501(3A). It was the cancellation decision that operated in a practical sense to bring about his detention at Villawood pursuant to s 189 of the Act.

113    The only challenge in this proceeding is to the Minister’s later non-revocation decision. No challenge was made at first instance to the anterior decision of the delegate to cancel the visa in the first place. That this is so is apparent from the originating application. It sought an order setting aside the Minister’s decision of 24 July 2018 but made no reference at all to the delegate’s decision of 1 February 2017. Before the Full Court no submission was received to the effect that Mr Raibevu should now be permitted to amend his originating application to include a challenge to the delegate’s cancellation decision.

114    This has unavoidable consequences for the constitutional challenges. The only power exercised by the Minister was the power under s 501CA(4). Even if the constitutional challenge to those provisions were sound, it would only mean that s 501CA(4) was invalid to the extent that it authorised the Minister not to revoke the cancellation. A finding to that effect would leave the delegate’s cancellation decision in place because no challenge has been brought to it; i.e. the visa would remain cancelled even if this Court upheld the challenge to s 501CA(4).

115    Such an outcome would have no utility. To put it another way, Mr Raibevu’s constitutional challenge is incapable of yielding any relief.

116    It is established that a court should not embark upon the determination of the validity of an Act of Parliament unless it is necessary to do so: Re Patterson; ex parte Taylor (2001) 207 CLR 391 at 473 – 474 (Gummow and Hayne JJ); Attorney-General (NSW) v Brewery Employees’ Union of NSW (1908) 6 CLR 469 at 590 (Higgins J) (“It is only when we cannot do justice, in an action properly brought, without deciding as to the validity of the Act, that we are entitled to take out this last weapon from our armoury” (emphasis added)). This doctrine of judicial restraint in relation to constitutional questions is an aspect of deference between the separate branches of government and reflects a recognition of the solemnity involved in declaring invalid laws made by a representative legislature.

117    In this case, the failure of Mr Raibevu to challenge the decision to which his constitutional argument actually relates has the consequence that that challenge is pointless. There was perhaps a recognition of this problem at [55] of Mr Raibevu’s amended written submissions where it was said that:

… the executive decision by the delegate to cancel the visa and the executive decision by the respondent not to revoke that decision, interfered with the administration of justice …

118    But this submission goes nowhere if no challenge is made to the delegate’s decision. Further, it reveals a certain looseness of thought because, if the delegate’s decision were invalid, then the Minister’s decision not to revoke it would be irrelevant. The present constitutional argument can only be coherently pitched at a cancellation decision under s 501(3A) for it is only the cancellation decision which can have any impact on Mr Raibevu’s ability to apply for parole.

119    Even if the arguments were capable of being directed at the non-revocation decision, they would confront other realities, for which Counsel for Mr Raibevu could supply no coherent answer.

120    First, the order sentencing Mr Raibevu to imprisonment did not require that he be released on the expiry of the non-parole period: Knight v Victoria (2017) 261 CLR 306 at [8] and [25]. Rather, upon the expiration of the non-parole period, Mr Raibevu was eligible to apply for conditional release: Crimes (Administration of Sentences) Act, s 126. The question of whether Mr Raibevu might be released on parole (and, if so, on what conditions) was not a question arising before any court, let alone a court vested with federal jurisdiction. It was a matter for the Executive government of the State of New South Wales. No issue arises under Ch III of the Constitution.

121    Second, to the extent that Mr Raibevu relied on the principles stated in Melbourne Corporation, the submissions did not identify an arguable case that s 501CA(4) was a law of general application which operated to destroy or curtail the continued existence of the State of New South Wales or its capacity to function as a State.

122    The remaining miscellany of complaints raised in the particulars to this proposed ground are a repetition of submissions already rejected above in connection with ground 1 or the proposed ground 3. Their merits were not addressed in oral submissions on the application for leave in any event.

123    The application for leave to introduce the proposed ground 2 is refused.

124    The appeal should accordingly be dismissed.

Associate:

Dated:    10 March 2020