Federal Court of Australia

Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    Subject to Order 3, the applicant pay half the first respondent’s costs of the application.

3.    If any party opposes the costs order in Order 2, they shall file and serve written submissions of no more than 2 (two) pages within 7 (seven) days of these orders in support of the costs order that they seek.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The applicant, Brendan Stewart, is a 45-year-old citizen of New Zealand who arrived in Australia in 1979 at age four. Prior to it being cancelled, the applicant held a Special Category (Temporary) (Class TY) (subclass 444) visa. The applicant has five children, including three minor sons, all of whom are Australian citizens.

2    The applicant has a lengthy criminal record in Australia from 1994 until his most recent convictions on 18 February 2019. On that date, the applicant was convicted of two counts of “common assault (DV)”, two counts of “contravene prohibition/restriction in AVO (Domestic)” and one count of “destroy or damage property (DV)”. He was sentenced to 15 months imprisonment with a non-parole period of 11 months. On appeal, the head sentence of 15 months was affirmed, but the non-parole period was reduced to nine months.

3    On 13 May 2019, the applicant’s visa was cancelled by a delegate of the first respondent (the Minister) under s 501(3A) of the Migration Act 1958 (Cth), on the basis that the applicant did not satisfy the character test set out in s 501(6) and (7) of the Act. Such cancellation is a mandatory requirement of s 501(3A).

4    The applicant made representations seeking to invoke, pursuant to s 501CA(4), the revocation of the cancellation decision by the Minister. On 18 February 2020, a delegate of the Minister notified the applicant of his decision not to revoke the cancellation of the applicant’s visa.

5    On 27 February 2020, the applicant applied for merits review of the decision of the delegate of the Minister in the Administrative Appeals Tribunal. The Tribunal (the Honourable John Pascoe AC CVO, Deputy President) affirmed the decision of the delegate of the Minister in a decision dated 11 May 2020.

6    The applicant seeks judicial review of the decision of the Tribunal in this Court in its original jurisdiction. The Chief Justice directed under s 20(1A) of the Federal Court of Australia Act 1976 (Cth) that that jurisdiction be exercised by a Full Court.

7    The applicant seeks an order that the decision of the Tribunal be set aside, and a writ of mandamus requiring the Minister to reconsider and determine the matter according to law. At the hearing, the Court granted leave to the applicant to rely on an amended application for judicial review.

8    The three amended grounds of review are expressed as follows:

1.    The Tribunal, in considering whether there was another reason why the original decision to cancel the applicant’s visa should be revoked, failed to exercise its discretion by not giving the weight the applicant’s history of mental illness and drug and alcohol addiction deserved when considering his criminal record and his risk to the community. The findings made by the second respondent in this regard are legally unreasonable.

2.    The Tribunal failed to properly consider the evidence of the applicant’s mental health and give sufficient weight to that evidence in relation to the impact on him should he return to New Zealand. The findings that the applicant would be able to return and live in New Zealand and that the applicant would suffer ‘some stress’ are legally unreasonable.

3.    The applicant argues that with the stakes regarding his future being so high that it is contingent on the respondent to weigh the effects of the applicant’s health against his past and his future. A failure to view the applicant’s past and likely conduct through this prism is legally unreasonable.

9    It will be observed that each ground of review asserts that the Tribunal’s decision is legally unreasonable, and each has at its heart the Tribunal’s consideration of the applicant’s mental health. Ground 1 asserts that insufficient weight was given to the applicant’s history of mental illness and drug and alcohol addiction in the context of the Tribunal considering the applicant’s criminal record and his risk to the community. Grounds 2 and 3 both assert that insufficient weight or inadequate consideration was given to the applicant’s mental health in the context of considering the impact on him of his return to New Zealand.

A preliminary point

10    In submissions filed 14 days before the hearing of the application, the Minister for the first time in the history of the matter raised a particular issue as a preliminary point. It is that the applicant’s representations to the Minister to revoke the cancellation of his visa were not received by the Minister, and were hence not “made” within the meaning of s 501CA(4)(a) of the Act, within the 28-day time period provided for such representations. The result, so it was submitted, is that the power to revoke the cancellation of the visa was not enlivened. It was submitted by the Minister that the application must therefore be dismissed because a decision to revoke the cancellation of the visa could not have been lawfully made and even if now remitted to the Minister, it could not lawfully be made.

11    There is authority for the proposition that if representations under s 501CA(4)(a) are not made within the 28-day time period that is provided for in the regulations then the power to revoke the visa cancellation is not enlivened, and on that basis any judicial review of a decision not to revoke the cancellation must fail: BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176 (Stewart J); Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1313 (Katzmann J). The correctness of that proposition was not challenged in this case.

12    However, as will be seen, the preliminary issue raises a question that was not raised in or dealt with by those authorities, namely when is it that a person “makes” representations within the meaning of s 501CA(4)(a)? Is it only when the representations are received by or on behalf of the Minister, as contended by him, or is it at some earlier time such as when, as in this case, they are dispatched by being given to the prison authorities for posting, as submitted by the applicant?

The statutory framework

13    Section 501(3A) of the Act provides that the Minister “must” cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to a substantial criminal record, or sexually based offences involving a child, and that the person is serving a full-time sentence of imprisonment. It is not in issue that the applicant did not pass the character test, that at all relevant times he was in prison serving a full-time sentence and that the cancellation of his visa was required by s 501(3A) and that it was validly done.

14    Section 501CA of the Act relevantly provides as follows:

(1)     This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)     For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)     is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)    As soon as practicable after making the original decision, the Minister must:

(a)     give the person, in the way that the Minister considers appropriate in the circumstances:

(i)     a written notice that sets out the original decision; and

(ii)     particulars of the relevant information; and

(b)     invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

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

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

   (b)      the Minister is satisfied:

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

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

     (Emphasis added.)

15    Regulation 2.52 of the Migration Regulations 1994 (Cth) relevantly provides as follows:

(1)     This regulation applies to representations made to the Minister under paragraphs 501C(3)(b) and 501CA(3)(b) of the Act.

  (2)     The representations must be made:

(a)     … ; and

(b)     for a representation under paragraph 501CA(3)(b) of the Act—within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act.

(Emphasis added.)

16    There is no express power in the Act or in the Regulations to waive or extend the 28-day time period provided for in reg 2.52(2)(b). The Governor-General has the power to make and therefore to amend the Regulations under s 504 of the Act.

Relevant events

17    The mandatory cancellation decision under s 501(3A) of the Act was made on 13 May 2019. It is marked as having been sent by pre-paid registered mail addressed to the applicant at the Mid North Coast Correctional Centre, Kempsey, NSW, where the applicant was serving his sentence. The Department of Home Affairs was subsequently unable to track the letter to establish if and, if so, when, it was delivered to the applicant. There was thus no evidence of when, if at all, it was received by the applicant in the form in which it was posted.

18    However, the notice of cancellation was also sent on 13 May 2019 by an officer of the Department as an attachment to an email addressed to email addresses at the New South Wales Departments of Justice and Corrective Services. The email included the following text:

A delegate of the Minister for Department of Home Affairs has cancelled the visa held by Brendan Leslie STEWART pursuant to s.501 of the Migration Act on 13 May 2019.

Brendan Leslie STEWART is to be informed of the decision by a written notification which has been sent by registered post to them separately, registered post number: […]. It is important for legal reasons that the full documentation sent to Brendan Leslie STEWART is handed to them as soon as possible when it arrives.

Please advise this office immediately if Brendan Leslie STEWART is moved to another prison before the formal notification can be given to them.

It is important that the full documentation is provided Brendan Leslie STEWART without delay as there is a limited period of time in which to apply for revocation of the visa cancellation.

Please note that included with the formal notice is an acknowledgement of receipt – see page 7. Please have Brendan Leslie STEWART complete this page and return a copy to our office, preferably via email or fax. Alternatively, please advise by responding to this email address confirming the date on which Brendan Leslie STEWART received the cancellation notification.

(All emphasis – bold, underline and grayscale – in the original.)

19    The notice of cancellation itself, which was addressed to the applicant, included the following:

To help ensure your representations contain all the information and documentation required by Regulation 2.52 as specified above (‘the Required Information’), it is recommended that you make your representations by completing the attached Revocation Request Form and sending the completed form to the Department.

Timeframe to make representations about revocation

Under Regulation 2.52(2), any representations you may wish to make in relation to the revocation of the original decision must be made within 28 days after you are given this notice. That means, in order for your representations to be considered, the Required Information (see explanations above) MUST be received by the Department within 28 days after you are taken to have received this notice.

As this notice was sent by mail from a place in Australia to an address in Australia, you are taken to have received it seven (7) working days after the date of this notice. A working day does not include weekends or public holidays in the Australian state or territory to where this notice was posted.

Providing the Required Information

If you decide to make representations to the Minister to seek revocation of the original decision, it is essential that the Required Information is received by the Department within 28 days after you are taken to have received this notice as this timeframe cannot be extended. (As mentioned above, it is recommended that you provide the Required Information by completing the attached Revocation Request Form.) If the Required Information is received outside the prescribed time frame of 28 days, the Minister or his/her delegate is not able to consider your representations because they would not have been made in accordance with the invitation (as set out in this notice), as required by s501CA(4)(a) of the Act.

…

Where to send your representations about revocation

Your representations (consisting of the Required Information, which you may provide by completing the Revocation Request Form) and any additional information in support of your representations may be sent by mail, email or fax.

(Emphasis – bold and underline – in the original.)

20    Immediately following the last quoted part of the notice, there was set out a postal address, an email address and a fax number to which the applicant was invited to “send” his representations.

21    On 23 May 2019, the applicant signed a document in which he acknowledged receipt of the notice of visa cancellation. The applicant’s signature was witnessed by a NSW Corrective Services officer also signing and dating the document. The document is the acknowledgement of receipt form referred to in the Department’s email of 13 May 2019. The signed document was emailed to the Department by someone with a NSW Department of Justice email address on 23 May 2019.

22    It can therefore be taken, which was accepted by the Minister, that the applicant received notice of the visa cancellation for the first time on 23 May 2019. The 28-day period provided for in reg 2.52(2)(b) within which representations for the revocation of the cancellation decision were required to be made accordingly ended on 20 June 2019.

23    The applicant signed and dated his representations for the revocation of the cancellation decision on 10 June 2019, ten days before the deadline. The evidence is that on that day he asked NSW Corrective Services officers if they could fax or email his representations to the Department, but the prison did not have the requisite facilities. The representations were apparently posted by NSW Corrective Services because they were received by the Department by post on 25 June 2019, five days after the deadline and a full 15 days after they had been given by the applicant to NSW Corrective Services officers for posting. The return address recorded on the envelope was the Mid North Coast Corrective Centre but the date that it was posted is not apparent.

24    It is not known whether the Corrective Services officers delayed in posting the representations or whether the representations were delayed in the post. In either event, what is clear is that the applicant, being in prison, could practically have done no more to get his representations to the Department before 20 June 2019 than what he did. That was to ask Corrective Services officers on 10 June 2019 to email or fax them and on being advised that there were no facilities to do that, to ask them to post the representations. He was otherwise entirely at the mercy of Corrective Services and the postal service.

25    Internal emails between officers of the National Character Consideration Centre (NCCC) of the Department reveal that the applicant’s revocation request was initially deemed invalid because it was received out of time. That was done on the basis of a notification of cancellation date calculated as the date of the notice of cancellation (13 May 2019) plus seven working days because the delivery method was done by registered post. That was presumably with reference to reg 2.55(7)(a) of the Regulations which provides that if the Minister gives a document to a person by dispatching it by prepaid post from a place in Australia to an address in Australia, the person is taken to have received the document seven working days after the date of the document.

26    However, because it was ascertained that the applicant actually only received notification of the cancellation on 23 May 2019, the Department determined to do the calculation from that date. On that basis, it was decided that the revocation request “would be deemed valid”. That was notwithstanding that the Department only received the representations more than 28 days after the applicant had received the notice of cancellation. The Department apparently either made a simple arithmetic error in calculating the days, or it did not regard the representations as only having been made on the day they were received.

27    In the decision of the delegate it is recorded that:

On 25 June 2019, Mr Stewart made representations seeking revocation of the mandatory visa cancellation decision … Although the revocation request was made outside the timeframe, the Department eventually decided to accept the validity of the revocation request considering the circumstances leading to such delay was beyond Mr Stewart’s control. Thus, I find that Mr Stewart has made representations in accordance with the invitation, as required under s501CA(4)(a) of the Act.

28    No point was taken by the Minister in the proceeding before the Tribunal with regard to the lateness of the applicant’s representations. The Tribunal decision thus proceeds on the basis that the representations were validly made and that the power of revocation was thus, in that sense at least, enlivened.

When are representations “made”?

29    The Minister submits that in terms of s 501CA(4)(a) the representations must be made “in accordance with the invitation”, and in this case since the invitation made explicit that the representations “MUST be received by the Department” (emphasis in original) within the 28-day time period and they were not received within that period of time, they were not made in accordance with the invitation.

30    We do not accept that submission. The Minister cannot by the terms of the invitation determine the meaning of the Act and the Regulations. Whether or not the time when the representations are “made” within the meaning of the legislation is when they are received by the Minister as stated by the Department in the notice, or at some other time, is to be answered by a proper process of construing the legislation. That cannot include what the Minister or the Department subsequently said the legislation means. Also, the time provided for in the Regulations cannot be truncated by the terms of the invitation.

31    The Minister also submits that applying the natural and ordinary meaning of the language of ss 501CA(3)(b) and 501CA(4)(a), representations are not “made to the Minister” until they are actually available to, i.e. received by, the Minister. He submits that one would not ordinarily understand a person to have made a representation to another person until the other person is in a position to understand that representation.

32    However, in the ordinary course, representations would not be considered to have been made “to” someone until that person had read or heard them. So on that approach, even if representations were received by the Minister’s office within the time period, if the Minister delayed until after the time period before reading them, which is practically inevitable in a busy bureaucracy, then the representations would have been made out of time. That would be a patently absurd and unintended outcome. Thus, little can be gained from focusing on the word “to”. It is necessary to take a broader approach to the task of statutory construction.

33    The importance of starting with the statutory context and text was emphasised by Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 in the following passage:

14.     The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose [citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 with approval]. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

34    The statutory context to the interpretive task includes that the person who wishes to make representations under s 501CA for the revocation of a cancellation decision is necessarily in custody. That follows from s 501(3A)(b) under which the visa is mandatorily cancelled, i.e. the person is serving a sentence of imprisonment on a full-time basis in a custodial institution. It is also confirmed by the reference in s 501CA(1) to the person serving a sentence of imprisonment.

35    Such a person is not at liberty. They cannot do what people at liberty can do, and they cannot be expected to do what people at liberty can be expected to do. They are at the mercy of their gaolers and must depend on them to transmit, whether by some electronic or digital means or by post or other physical means, their representations in favour of revocation to the Minister.

36    That is a critical part of the context because, if the Minister’s submission that representations are not “made” until they are received is correct, then the prisoner who wishes to seek revocation of a visa cancellation is entirely at the mercy of their gaolers; no matter how careful and diligent they are in their efforts to get their representations to the Minister on time, if their gaolers do not cooperate or are careless or otherwise remiss in acting promptly, the representations may be received by the Minister out of time or not at all. As a consequence, the prisoner would lose the possibility of a revocation decision in their favour.

37    That is a particularly harsh and unjust consequence which unless required by the statutory language would not be regarded to have been intended. In that regard, the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed, and the process of construction must always begin by examining the context of the provision that is being construed: Project Blue Sky at [96] per McHugh, Gummow, Kirby and Hayne JJ.

38    Also applicable, given the harsh consequences of removing the prisoner’s ability to meet the time limit imposed on seeking revocation of a mandatory visa cancellation from their control and leaving their ability to send any representation under s 501CA to the Minister in the complete control of their gaolers, is the presumption that, relevantly, absurd, capricious or unreasonable consequences should be avoided. Thus, “where two meanings are open … it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust”: Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd [1975] HCA 28; 132 CLR 336 at 350 per Gibbs J; Legal Services Board v Gillespie-Jones [2013] HCA 35; 249 CLR 493 at [48] per French CJ, Hayne, Crennan and Kiefel JJ.

39    Under the statutory scheme, a visa is mandatorily cancelled under s 501(3A) if the visa holder does not pass the character test because of the operation of para (6)(a) (substantial criminal record) on the basis of paras (7)(a), (b) or (c), or para (6)(e) (sexually based offences involving a child), and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution. The threshold for such a mandatory cancellation includes if the visa holder has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)) or if a court in Australia or elsewhere has found the person guilty of a sexually based offence involving a child even if the person was discharged without a conviction (s 501(6)(e)).

40    The result is that s 501(3A) of the Act prescribes the mandatory consequence of the person’s relevant offending and a sentence of full-time imprisonment entails that their visa is cancelled. In some cases, that consequence may not be particularly harsh and may do no injustice. For example, a relatively young person on a short-term visa, with little connection to Australia and a full and safe life ahead of them elsewhere, may find the cancellation of their visa no more than an irritation. In another case, the consequence may be devastating and, on the face of it, unjust or unfair. An example would be an older person who has lived in Australia for almost their whole life, had long since qualified for citizenship but not acquired it, not out of conscious choice but from ignorance or disadvantage, and has no connection at all to another place and little if any prospect of establishing a meaningful or fulfilling life for themselves there. Another example, taken from Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 (at [40]), is if the person was returned to another country they would likely be chained, imprisoned and at risk of physical injury because of that country’s treatment of the mentally ill.

41    The statutory scheme provides the mechanism to ameliorate the hardship that might be caused by a mandatory cancellation in a particular case. That is by giving the visa holder the ability to make representations to the Minister to revoke the cancellation on the grounds that the person actually does pass the character test (s 501CA(4)(b)(i)), or there is another reason why the original decision should be revoked (s 501CA(4)(b)(ii)). In a case at the low end of the spectrum of harshness, there would on the face of it be no other reason for revocation. But at the other end of the spectrum, the reason for revocation may be glaring and obvious. It is the extraordinary harshness that could be meted out to the person. But even then, the Minister might not revoke the cancellation when not only the harshness of the consequences of the cancellation is taken into account but also other relevant considerations such as the risk of reoffending and the protection of the Australian community.

42    That analysis of the statutory scheme demonstrates the importance of the person’s ability under s 501CA(4) to have the cancellation reconsidered by the Minister. Absent such reconsideration there is no opportunity in the statutory scheme for “another reason” to revoke the cancellation to be considered. It cannot have been intended by the Parliament that that could be lightly taken away. Requiring the person to act promptly in making their representations for revocation is readily understandable, but to leave them powerless, because of their status as a prisoner, to ensure that those representations are actually received by the Minister within a particular time period is an unreasonable result which the text of the provisions does not on the face of it require. That text should therefore not be construed so as to require that result.

43    The statutory context thus tells strongly against the interpretation that “made” means “received”. Rather, in this context, it means “dispatched”.

44    Insofar as the text itself is concerned, the requirement in reg 2.52(2) that representations must be “made” within the stipulated time period stands in contrast to the requirement in reg 2.53(1) that information or material referred to in s 501D to satisfy the Minister that a person passes the character test must be “received” by the Minister within the stipulated time period. That is notwithstanding that s 501D provides that the information or material must be “submitted” within the period ascertained in accordance with the Regulations. Different language in a statute or statutory instrument is generally to be taken as intending a different meaning unless the words are in themselves sufficiently clear: Commissioner of Taxes (Vic) v Lennon [1921] HCA 44; 29 CLR 579 at 590 per Higgins J; Project Blue Sky at [71]; Construction, Forestry, Mining and Energy Union v Hadgkiss [2007] FCAFC 197; 169 FCR 151 at [53] per Lander J; Murray v Chief Examiner [2018] VSCA 144; 273 A Crim R 153 at [41] per Whelan, Beach and Niall JJA.

45    In this instance, the meaning of the word “received” is clear. The word “made” or “makes” is not. Had “received” been intended it could easily have been used but was not. The presumption therefore operates and supports the proposition that “made” in reg 2.52(2) does not mean “received”.

46    The Minister submits that, fundamentally, reg 2.52 deals with a time period – the context of that fundamental purpose is to create certainty. He submits that if one were to construe the word “made” as simply being “expressed” (or, we infer, dispatched), that would not promote certainty because the Minister could potentially be uncertain at all times as to whether a decision on the revocation of a cancellation was required.

47    The more compelling consideration is that the uncertainty for the prisoner that arises from the Minister’s interpretation is more prejudicial and thus presumptively to be avoided than any uncertainty arising from the contrary interpretation. That prejudice arises from the uncertainty of a prisoner who has no independent ability to communicate representations to the Minister, having dispatched, or given to the prison authorities to dispatch, representations calling for revocation well within the time period and then not knowing, and not being able to do anything about, whether they have been received in time. In those circumstances, the prisoner does not know whether they are subject to removal from Australia at any time or whether their revocation request is being considered. The Minister, on the other hand, is not waiting for anything and does not suffer prejudice from any uncertainty consequent on the contrary interpretation. If the Department, not knowing that a revocation request has been dispatched, makes moves to remove the prisoner, the prisoner will doubtless immediately bring the fact of the revocation request to the Department’s attention and no harm should have been done.

48    The Minister submits, by analogy, that in a contractual context posting acceptance of an offer will not create a binding contract unless the offeror has indicated, expressly or impliedly, that the offer may be accepted by post and will be taken to be accepted upon posting. He refers to Tallerman & Co Pty Ltd v Nathan’s Merchandise (Vic) Pty Ltd [1957] HCA 10; 98 CLR 93 at 111 per Dixon CJ and Fullagar J:

The general rule is that a contract is not completed until acceptance of an offer is actually communicated to the offeror, and a finding that a contract is completed by the posting of a letter of acceptance cannot be justified unless it is to be inferred that the offeror contemplated and intended that his offer might be accepted by the doing of that act.

(Emphasis added.)

49    In our view, the contractual context of offer and acceptance is not analogous and is unhelpful to the analysis. It is also clouded by the language of the cancellation notice that invited the applicant to “send” his representations to the Minister and provided addresses to which he should “send” them.

50    Here, ss 501CA(3)(b) and 501CA(4)(a) and reg 2.52 are concerned with affording a person who is currently in prison a real opportunity, within a specified period, to make representations to the Minister as to why the cancellation should be revoked. The statutory context contemplated and intended that the prisoner would have a limited capacity to communicate with the Minister. That was because of the effect of the deprivation of the person’s liberty and consequent limitations on their ability to arrange for, or ensure, delivery of any representations that they might make. Rather, the legislative expressions “makes” and “made” in s 501CA and reg 2.52 focus on the act of the prisoner, not the position of the Minister as the intended recipient of the representations. It can readily be inferred that, in such a context, the statutory language contemplated and intended that the prisoner only do all that was reasonably in their power to “make” the representations within the prescribed period of 28 days after being given the notice of revocation.

51    The prisoner, in a case like the applicant’s, could not use any email or facsimile facilities at the prison to send his representations because the prison authorities either did not have those facilities or would not make them available to him. All he could do was to give the representations he had already written to the prison authorities and entrust to them the task of communicating them to the Minister as and when they saw fit. He had no control whatsoever over the timing of when the prison authorities might choose to send his representations to the Minister.

52    The Minister seeks to find some support for his interpretation in BDS20 and Sillars. Those efforts are, however, futile in view of the fact that the question of whether “made to the Minister” means “received by the Minister” was not in issue in those cases and they say nothing about that question.

53    The Minister also refers to Minister for Immigration and Border Protection v Kumar [2017] HCA 11; 260 CLR 367 at [25] and [36] in support of the proposition that the representations are made when they are received. That case concerned an application for a 572 visa, one of the conditions of which specified in cl 572.211 of Sch 2 to the Regulations was that the applicant was the holder of a visa of a specified class or subclass at the time that the application was “made”. The application was posted at a time when the applicant was such a visa holder, but it was received by the Department on a Monday which was the day after that visa expired, being the Sunday. The question in the case was whether the applicant enjoyed the benefit of s 36(2) of the Acts Interpretation Act 1901 (Cth) which provides that if an Act “requires or allows a thing to be done” and “the last day” for the doing of the thing is, relevantly, a Sunday then the thing may be done on the next day. It was held, by a majority, that s 36(2) was not engaged because no time limit was imposed for the making of the visa application; the requirement that the applicant was the holder of a specified class or subclass of visa at the time that the application was made was a criterion for the issue of the visa and not a time limit on the application.

54    Kumar is no authority in support of the Minister’s preliminary point in the present case because in that case it was common ground that the visa application was made when it was received by the Department: at [25], [32] and [37]. Thus, the question of when the application was “made” was not examined. But in any event, the statutory context was quite different, including that an applicant for a 572 visa was not necessarily in prison.

55    In the result, the Minister’s preliminary point should be dismissed. The applicant made his representations when he gave them to the Corrective Services officers to be sent to the Minister. That was well within the 28-day time period allowed under the Regulations.

The Tribunal’s decision

56    On 11 May 2020, the Tribunal made the decision not to revoke the cancellation under s 501(3A) of the Act. The Tribunal’s reasons cover a range of primary and other considerations as mandated by Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (28 February 2019) made under s 499 of the Act. Relevantly for this appeal, the Tribunal gave consideration to the nature and seriousness of the applicant’s crimes, the risk to the Australian community, the best interests of minor children, the expectations of the Australian community, the strength, nature and duration of the applicant’s ties to Australia, and the extent of impediments faced by the applicant if he were to be returned to New Zealand.

57    In respect of the “primary consideration” of “risk to the Australian community”, the Tribunal found that this factor weighed heavily in favour of cancelling the applicant’s visa: at [35] and [61]. In reaching this conclusion, the Tribunal considered that the objective seriousness of the applicant’s offending was reflected in the fact that the applicant had been sentenced to several terms of imprisonment: at [24]. The Tribunal also noted its concern that the applicant had continued to offend despite receiving several formal warnings that such offending may lead to the cancellation of his visa: at [25]. Indeed, the applicant’s visa had been cancelled on a previous occasion and then revoked, but still he continued to offend: at [10]. The Tribunal also found that “there [was] a serious risk that the applicant would reoffend and that this [would] involve a substantial risk to the Australian community”: at [35]. That conclusion echoed the remarks on sentence of a sentencing judge who stated that the applicant has a “reasonably high risk of reoffending”: at [32].

58    The Tribunal noted the applicant’s long history of polysubstance use and domestic violence and that he had ignored the many warnings from the Department as a result of his alcohol and drug addiction which were underlying factors for his offending: at [18] and [31]. The Tribunal also noted that the sentencing judge was not satisfied that the applicant’s violence against his former partner was explicable by his alcoholism or mental health issues, but that the offences occurred because the applicant could not manage his anger and take control: at [33].

59    In respect of the “primary consideration” relating to the “best interests of minor children”, the Tribunal found that this consideration merited substantial weight in favour of revoking the cancellation decision: at [42]. In coming to this conclusion the Tribunal focused on the applicant’s relationship with one of his sons (aged 11), noting that the applicant has little contact with his other two minor sons: at [37]. Although the Tribunal accepted that the applicant could maintain a relationship with his son if he were returned to New Zealand, it found that this would be much more difficult and that it would involve a level of stress for the child: at [39].

60    In respect of the “primary consideration” relating to the “expectations of the Australian community”, the Tribunal found that the applicant had breached the trust of the Australian community and gave significant weight to this consideration: at [48]. It also cited the remarks of a sentencing judge describing the applicant as “a serial abuser of women in a domestic situation”: at [46]. The Tribunal noted that the evidence showed similar violent behaviour towards each of his partners, and that he had served considerable periods in custody which had resulted in significant cost to the Australian community in terms of law enforcement, court resources and the costs of detention: at [46]-[47].

61    In relation to “other considerations”, the Tribunal found that the “strength, nature and duration of the applicant’s ties to Australia” weighed moderately in favour of revocation: at [55]. The Tribunal took into account that the applicant has lived in Australia since he was a young child, and that his extended family live in Australia, but also noted that he has failed to develop any significant ties with the broader community: at [49] and [53].

62    The Tribunal also gave moderate weight to the extent of impediments faced by the applicant if returned to New Zealand. The Tribunal accepted that the applicant is likely to suffer some stress in trying to re-establish himself in New Zealand: at [59]-[60].

63    Balancing all of these factors, the Tribunal concluded that the protection of the community and the expectations of the community outweighed all other factors. Accordingly, the Tribunal affirmed the decision under review: at [61]-[62].

Consideration

64    It is unnecessary to set out the principles of legal unreasonableness in any detail. They have been identified and stated on innumerable occasions, including: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [19]-[20] per Kiefel CJ, Bell, Gageler and Keane JJ; Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [23]-[31] per French CJ, [63]-[76] per Hayne, Kiefel and Bell JJ and [88]-[113] per Gageler J; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [43]-[52] per Allsop CJ, Robertson and Mortimer JJ; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [2]-[13] per Allsop CJ, [52]-[61] per Griffiths J and [91]-[92] per Wigney J; Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 at [54]-[65] per Allsop CJ, Griffiths and Wigney JJ; Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81 at [33]-[35] per Charlesworth J, Flick and Perry JJ agreeing; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541; Minister for Immigration and Border Protection v Haq [2019] FCAFC 7; 267 FCR 513 at [33]-[38] per Griffiths J (Gleeson J agreeing) and [72]-[97] per Colvin J; BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54 at [27]-[41] per Murphy and O’Bryan JJ; BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 at [131]-[138] per Bromwich J (White J agreeing).

65    The ground of judicial review known as “legal reasonableness” derives from a statutory implication. The implication that a statutory power be exercised within the bounds of (legal) reasonableness arises through a common law presumption: ABT17 at [19]; Li at [29] per French CJ, [63] per Hayne, Kiefel and Bell JJ and [88] per Gageler JJ; SZVFW at [53] per Gageler J, [80] per Nettle and Gordon JJ and [131] per Edelman J. Where a statutory power is exercised in a manner that is legally unreasonable, the exercise of the power is beyond the jurisdiction conferred upon the repository of that power; that is, the repository committed a jurisdictional error: SZVFW at [51] per Gageler J and [80] per Nettle and Gordon JJ. There are different ways of formulating the expression of legal reasonableness. These include that unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification (Li at [76]), and that reasonableness is the minimum to be expected of any reasonable repository of the power (SZVFW at [52] and [134]). It has been repeatedly emphasised that the test for unreasonableness is necessarily stringent (Li at [108]; SZVFW at [108]). In ABT17 at [19] Kiefel CJ, Bell, Gageler and Keane JJ said:

“[t]he implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made” [quoting Li at [91]] such that “[j]ust as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course” [Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 at 290, citing Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 46; 6 FCR 155 at 169-170, cf Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 at [20]-[25]].

66    Importantly for present purposes, French CJ held in Li as follows (at [30]):

The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker.

67    See also Prior v Mole [2017] HCA 10; 261 CLR 265 at [129] (Gordon J); SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; 238 FCR 404 at [57] per Robertson and Kerr JJ (Logan J agreeing); AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; 262 FCR 317 at [76] per Tracey and Mortimer JJ.

68    Each of the applicant’s grounds of review complains about the weight given by the Tribunal to a particular matter or particular evidence. However, the question of weight was a matter for the Tribunal. Even if the Court considers on review that, had it been the repository of the power, it would have given a different weight to the identified matter or evidence that would not justify intervention. It was the function of the Tribunal, acting within the implied condition of reasonableness, to attach the weight that it regarded as appropriate to the applicant’s mental health and drug and substance abuse history.

69    No jurisdictional error has been identified by the applicant in the approach taken by the Tribunal. The Tribunal appreciated the applicant’s history of drug and alcohol addiction and considered how this impacted on the assessment of the considerations relevant to its decision. The applicant did not assert before the Tribunal that his mental health was an impediment to his return to New Zealand except in a general way, which was taken into account by the Tribunal.

Conclusion

70    In the circumstances, the application should be dismissed.

71    Insofar as costs are concerned, subject to giving the parties the opportunity to make short written submissions on costs in the event that they wish to contend to the contrary, in our view the Minister should have only half the costs of the application. The reason for that conclusion is that a considerable part of the preparation for and conduct of the hearing was taken up dealing with the Minister’s unmeritorious preliminary point.

Associate:

Dated:    12 November 2020