Federal Court of Australia

Jones v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 137

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of and incidental to the appeal, to be fixed by a Registrar if not agreed.

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

REASONS FOR JUDGMENT

LOGAN J:

1    Mr Phyllip John Jones is presently 71 years of age. He was born in the United Kingdom. He is a British citizen and a British subject. He came to Australia as a 15 year old child with his family. That was so long ago the Right Honourable Sir Robert Menzies KT CH QC was then our Prime Minister. Mr Jones has resided in Australia ever since. As a result of events related below, he is presently in jeopardy of being removed, against his wishes, to the United Kingdom.

2    As a then minor, the decision about migrating to Australia from the United Kingdom was made for Mr Jones by his parents in the mid-1960s. Neither he nor his parents nor his accompanying siblings came here as tourists or on some other temporary basis. The Jones family came here as settlers. On whatever view one takes of the term “immigrant” for the purposes of the citizenship and immigration power in s 51(xxvii) of the Constitution (qv O’Keefe v Calwell (1949) 77 CLR 261 and Koon Wing Lau v Calwell (1949) 80 CLR 533), the circumstances of this case admit only of a conclusion that Mr Jones was long ago absorbed into the general Australian community and thereby ceased to be an “immigrant”.

3    But the legislative authority for the enactment of the Migration Act 1958 (Cth) (the Act) is no longer, as it was when the Jones family came here, s 51(xxvii) of the Constitution. It is presently found in the naturalisation and aliens power in s 51(xix) of the Constitution. There was a time, and it is not so very long ago, when the view that a British subject, such as Mr Jones, was not an alien commanded the support of a majority of the High Court of Australia: see Re Patterson; ex parte Taylor (2001) 207 CLR 391. But that view no longer prevails: see Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 (Shaw).

4    In light of Shaw, even if Mr Jones were not an “alien” on his arrival in Australia, he became one upon the revocation of his Australian citizenship: Love v Commonwealth (2020) 270 CLR 152 (Love); see also a thought provoking article on alienage since Federation:  Gerangelos P, “Reflections upon Constitutional Interpretation and the Aliens Power: Love Commonwealth” (2021) 95 ALJ 109. His long ago absorption into the general Australian community did not change that status. Whatever incongruity, jurisprudential or otherwise, there may be between Mr Jones’ position and that of another person, also born outside Australia, and who may never have been absorbed into the general Australian community, but who is an Aboriginal Australian, understood according to the tripartite test in Mabo v Queensland (No 2) (1992) 175 CLR 1, at 70, and therefore not an “alien” – Love, by majority – is a matter for the political arena, not for the courts.

5    Further, the material in this case discloses that Mr Jones spent his entire working life in Australia and that he never worked in the United Kingdom. It is therefore Australian, not British, income tax which he paid on his earnings. But whatever issues a removal of Mr Jones to the United Kingdom raises, in terms of the potential burden on the British consolidated revenue, of the health and social welfare care of the return of a septuagenarian in indifferent health and separated by half a world from his partner and family are for resolution in the diplomatic arena, not in the courts.

6    How then did Mr Jones come to be in jeopardy of removal from Australia to the United Kingdom?

7    On 21 December 1988, Mr Jones acquired, on his application, Australian citizenship.

8    Over a period between 1980 and 2001, Mr Jones committed a series of sexual offences against various young female members of his wider family. The offences concerned are more particularly detailed in a Criminal History Record included in the Appeal Book and in the transcript of a sentencing hearing in the Queensland District Court on 27 May 2003, also so included. On that day, Mr Jones was convicted of the offences charged and sentenced to concurrent terms of imprisonment for two-and-a-half years, to be considered eligible for parole after having served nine months. However, it appears that Mr Jones served most, if not all, of that sentence in prison, as he was not released until 2005.

9    There is no suggestion that Mr Jones reoffended in any way following his release from prison.

10    For present purposes, there matters rested until 2018. On 9 July 2018, acting under s 34(2) of the Australian Citizenship Act 2007 (Cth), the then Minister for Home Affairs, the Honourable Peter Dutton MP, cancelled Mr Jones’ Australian citizenship. Mr Jones’ commission of offences in Australia prior to his being granted citizenship, and the length of the terms of imprisonment imposed in respect of those offences, had placed him in jeopardy of such an outcome.

11    The cancellation of Mr Jones’ Australian citizenship did not automatically remove Mr Jones’ right to reside in Australia. That was because he became immediately entitled to a former citizen visa under the Act. But it did mean that his right of lawful residence in Australia was thereafter wholly dependent upon his continued possession of a visa issued under the Act.

12    On 24 November 2021, for reasons which accompanied his decision, the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Honourable Alex Hawke MP (Minister), acting personally under s 501(2) of the Act, cancelled Mr Jones’ visa. That rendered Mr Jones an unlawful non-citizen, amenable to detention and removal from Australia to his country of citizenship, the United Kingdom.

13    Mr Jones sought the judicial review of the Minister’s decision in the Court’s original jurisdiction. On 29 March 2022, that judicial review application was dismissed: Jones v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 285.

14    Mr Jones has now appealed against that order of dismissal. The grounds of appeal are as follows:

1.    The Court erred in failing to find legal unreasonableness in the Respondent’s consideration of the Appellant’s risk of reoffending.

Particulars

(a)    Accepting that his Honour was correct in finding that one of the Appellant’s sexual offences was against a person over the age of 18, it was unreasonable for the Respondent to fail to consider whether, and the extent to which, the appellant may have an opportunity to offend in the future given that,

(i)    All his previous offending had been in a domestic setting, the victims being female relatives of his ex-wife,

(ii)    He had, since his latest offence in 2001, had only one relationship, that being with his current partner which began in 2018, and,

(iii)    He was at the time of the Respondent’s decision to cancel his visa, 70 years of age.

2.    The Court erred in finding that it was within the Respondent’s authority, and that it was not “plainly unjust” and therefore legally unreasonable, to cancel the appellant’s visa pursuant to s. 501(2) of the Migration Act 1958 in the following circumstances,

(a)    By the time the Respondent cancelled the Appellant’s visa, 20 years had elapsed since he had last offended, and 16 years since he had been released from prison.

(b)    At the time of the visa cancellation the Appellant was 70 years of age, and so beyond the normal age of employment.

(c)    He had developed serious developed severe health problems, including heart disease, and possible age-related cognitive decline.

(d)    He had re-established close contact with his family.

(e)    Had developed a close and loving relationship with a permanent resident of Australia.

(f)    The Respondent’s analysis of the Appellant’s risk to the Australian community, being that that risk may arise if the Appellant’s relationship with his partner were to develop “relationship difficulties” or end, which would result in his relapsing into alcohol abuse, did not of itself justify the visa cancellation.

3.    The Court erred in finding that the Respondent did lawfully consider the effect of the cancellation of the Appellant’s visa on his partner.

Particulars

(a)    Error in finding (at reasons [44]-[45]) that the Respondent’s reference to the specific evidence going to the effect of visa cancellation on the Appellant’s partner undermines the possibility that he did not give it genuine consideration.

(b)    Error in finding (at reasons [47]) that the Respondent was not obliged to consider any matter in the exercise of his discretionary power so long as he turned his mind to the merits of the case.

4.    The Court erred in finding that the Respondent was not required to consider the issue of whether, if removed to the United Kingdom, the Appellant would relapse into alcohol abuse.

Particulars

(a)    Error in finding (at reasons [55]) that the Respondent was not required to consider a matter that was not advanced to him but only arose on his own findings.

(b)    Error in finding (at reasons [59]) that in any event, the issue of whether, if removed to the United Kingdom, the Appellant would relapse into alcohol abuse did not clearly arise.

(c)    Error in finding (at [60]-[61]) that consideration of the issue of relapse into alcohol abuse was subsumed in the Respondent’s consideration of the Appellant’s declining mental health.

(errors in original)

15    Save, perhaps, for ground 1, these grounds of appeal rehearsed the grounds of review pleaded in the amended originating application for judicial review. On the hearing of the appeal, the Court was disposed to grant such leave as was necessary so as to allow Mr Jones to raise the first appeal ground. I set out in the following paragraph why I was so disposed.

16    It is exceptional for a court exercising appellate jurisdiction to permit points not raised in the original jurisdiction to be raised for the first time on an appeal: see as to this University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, at 483; see also in the High Court, Coulton v Holcombe (1986) 162 CLR 1, at 7, and in this Court, Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424, at [37]-[38]. There should be no encouragement of a view that it is in any way possible to save up points which ought to be run in the original jurisdiction for later use in the appellate jurisdiction. However, this case touches on Mr Jones’ liberty and also his ability to remain in Australia, the point raised is a pure point of law, in many ways just a refinement of the first ground of review as argued in the original jurisdiction and the Minister was given adequate notice of the ground so as to make written and then oral submissions as to its merits. These considerations persuaded me that such leave as was necessary should be granted.

SOME OVERARCHING PRINCIPLES

17    Of course each visa cancellation case must turn on its particular facts, including the reasons given for cancellation and the particular jurisdictional errors alleged to have been made by the Minister or a delegate. However, recalling, as I have particular cause to do, Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Stretton), the more the appellant’s submissions progressed the more I experienced a feeling of déjà vu.

18    It is just not possible, in a society governed by the rule of law and, with that, a doctrine of precedent, for a later Full Court to treat an exposition of general principle by an earlier Full Court on the nature of a jurisdictional error ground, here, unreasonableness, as if it were confined to that earlier case. Neither, unless convinced that it is clearly wrong, is it possible for that later Full Court to do other than apply that exposition in the circumstances of the case before it. Mr Jones did not submit that Stretton was wrongly decided. This would have been a difficult submission to advance, as that exposition of principle has later been endorsed in the High Court: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (SZVFW), at [57] and [59]-[60] per Gageler J and at [135] per Edelman J.

19    The Minister’s reasons for cancelling Mr Jones’ visa were detailed. They were responsive to, and grounded in, the material before him, especially an eloquently argued, well supported submission made on Mr Jones’ behalf by his present solicitors as to why his visa ought not to be cancelled. But the Minister was not bound to accept that submission, however much some might think to do otherwise was harsh or even cruel.

20    The exercise of the power conferred by s 501(2) of the Act is conditioned upon the formation of a reasonable suspicion by the Minister that the person does not pass the character test (as defined by s 501(6) of the Act) and a failure by that person to satisfy the Minister that he or she passes the character test. Once the preconditions are met, a broad, evaluative discretionary power is engaged, with “[c]onsiderations relevant to the exercise of the power depend[ing] on the nature, scope and purpose of the power, understood in its context in the Act”: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 (Nystrom), at [128]. The purpose of the discretionary power of visa cancellation is not punitive but rather at least protective (although that may not, perhaps, be the limit of the purposive remit of the power): Stretton, at [26] per Allsop CJ. So others, including, self-evidently, the Minister, might see the decision in this case as protective, as to adopt a Cromwellian term, a “cruel necessity”. The role of making discretionary value judgments in the exercise of the power is consigned by parliament to the Minister, not to the judicial branch. The role of the judicial branch is only to ensure, if its jurisdiction is invoked, that a resultant Ministerial decision has been made according to law.

21    Flowing from the point just made is a reminder very recently offered by Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (Plaintiff M1/2021), at [26], with reference to this statement of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 40, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. That limited role is also the subject of a notable exposition by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 in the course of which, at 36, his Honour stated:

[T]he court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

22    The joint judgment in Plaintiff M1/2021 also offers, at [38], a further reminder. By reference, ultimately, to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang), at 271-272, 278 and 282, their Honours emphasised, “The Court is not ‘astute to discern error’ in the reasons of an administrative decision-maker.”

23    Related, in turn, to each of these reminders is another passage in the joint judgment in Plaintiff M1/2021, at [24]-[26], which cautions against a court exercising a judicial review jurisdiction impermissibly transgressing into a form of merits review under the guise of holding that an administrative decision-maker has not given genuine consideration to a particular issue. The passage is an important one and should be set out in full, given that the Court was pressed on the appeal with a number of Full Court authorities which, to the extent to which they have any enduring relevance, must now be read subject to what was said in Plaintiff M1/2021:

[24]    Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

[25]    It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

[26]    Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”.

(footnote references omitted; italics added)

24    These observations in Plaintiff M1/2021 were made with respect to the exercise of the power conferred by s 501CA(4) of the Act to revoke the cancellation of a visa. That subsection expressly provides for the consideration of a representation made by a former visa holder.

25    There has never been any question, in light of his offending history, that the Minister did not have a reasonable basis for suspecting that Mr Jones did not satisfy the character test or that he could satisfy the Minister otherwise. The power having been enlivened, s 501(2) made no express provision for the making of any representation by Mr Jones as a visa-holder prior to its exercise. However, the exercise of that power being one which affected a personal right, it was incumbent upon the Minister to afford Mr Jones a prior opportunity to be heard. This the Minister did. Mr Jones took up that opportunity, via the submission made to the Minister by his solicitors.

26    In this fashion, everything said in the passage quoted from Plaintiff M1/2021 in relation to representations is likewise applicable to the submission made to the Minister prior to the exercise of his discretion under s 501(2). Amongst the cases in respect of which, in the passage quoted, their Honours nominated as presenting a danger flowing from the use of “labels” are Singh v Minister for Home Affairs (2019) 267 FCR 200, at [30]; Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 (Hands), at [38]; Minister for Home Affairs v Omar (2019) 272 FCR 589, at [37]. It was this line of authority which featured in the submissions made on Mr Jones’ behalf on the appeal in relation to the claimed inadequacies, as said to be revealed by the Minister’s reasons, in the way in which the Minister had dealt with the submission to him.

27    Their Honours were astute in Plaintiff M1/2021, at [27], to emphasise that nothing in what they had stated in the passages earlier quoted meant that a failure to understand take account of an element of a submission could not give rise to a jurisdictional error:

None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

(footnote references omitted)

28    Plaintiff M1/2021 was handed down after the learned primary judge had delivered judgment in the present case. However, the approach adopted by his Honour to the determination of the grounds of review was completely congruent with what was said in that case in the passages quoted above.

29    I turn then to the merits of the particular grounds of appeal.

GROUND 1

30    The Minister’s reasoning as to the future risk presented by Mr Jones was detailed. On any view, it engaged with the material before him about Mr Jones’ past offending conduct, his rehabilitative efforts and expressed remorse, as well as an expert psychological report prepared by Professor Freeman concerning Mr Jones’ condition and future risk profile and his family circumstances. This culminated in the following, at [64]-[65]:

64.    I have taken into account the above factors in dictating a reduced risk of Mr JONES reoffending, including his completion of a validated sex offender program, his current moderate consumption of alcohol, his age, his relationship with [B], his social supports, the noted deterrents against recidivism, and the assessment of Professor Freeman . Overall I find that there is a low risk of Mr JONES committing further sexual offences, rather than ‘a negligible risk’ as submitted by Ms White, particularly as any difficulties in his relationship with [B] are likely to place him at risk of relapsing into alcohol abuse. [Ms White was the author of the submission to the Minister made by Mr Jones’ solicitors. [B] had been Mr Jones’ de facto partner since about April 2018.]

Conclusion on risk to community

65.    I have found that the nature of Mr JONES’s conduct is very serious. I have further found that child sexual offences, and sexual offending generally, has the potential to cause physical and psychological injury to members of the Australian community. On balance I consider there to be a low likelihood that Mr JONES will reoffend. Nevertheless, I considered that, should Mr JONES engage in similar conduct again it may result in psychological and physical harm to members of the community. I have given this weight in favour of cancellation.

(emphasis in original)

31    Although, before the primary judge, the equivalent ground of review was cast on the incorrect factual premise that all of Mr Jones’ past offending conduct had been against children, the proposition now found in appeal ground 1 did not escape his Honour’s attention. His Honour stated, at [21]:

… In the postulated scenario of Mr Jones’s relationship with his partner failing and his resumption of alcohol abuse, there was no reason to think that an occasion would not arise in which he was in the unsupervised presence of children in a domestic setting or otherwise. It should not be forgotten that the issue involves conjecture as to what might occur in the future and all that the Minister is able to do is hypothesise as to what might occur. Here the Minister was apparently concerned with the possibility of Mr Jones engaging in future offences of a sexual nature, including as against children. In so doing he was entitled to, and probably could only, address the potential for that to occur at a relatively high level generality. To attempt to assess the possibility of the commission of specific future criminal conduct would require the Minister to either develop superhuman prescience or engage in what could only be wild speculation which would ultimately be meaningless. In order to meet the standard which it is now submitted the Minister must meet, he would be required to postulate the wide range of particular permutations of events which might arise if Mr Jones’s current relationship broke down, including how Mr Jones might behave as a result. It would then be necessary to postulate the infinite variety of circumstances in which Mr Jones might find himself in the unsupervised presence of children. Such circumstances could be myriad and it would necessarily involve substantive conjecture to identify them. It is not necessary for a decision-maker to descend to that level of granularity in order to ascertain whether the risk of reoffending exists. Such an analysis could only ever be required if the Minister, instead, sought to evaluate the probability of a person reoffending in a manner identical to past offending. That was not attempted in this case.

32    There is no error in this assessment. It is exactly in conformity with some passages in the judgment of Allsop CJ in Stretton, at [16]-[17] and [22]:

16    … The Minister accepted that the risk of Mr Stretton re-offending was low, but recognised that should re-offending occur the harm could be serious to the community …

17    It may be that others exercising this governmental power on behalf of the Australian people would have been prepared, on the community’s behalf, to take the low risk of the possibility of his reoffending to avoid the harshness inflicted by the removal. That can be accepted. But that is not sufficient for the decision to be characterised as legally unreasonable –– as a decision that is of a character not supported by its apparent statutory source. The decision to be made under s 501 called for an evaluative balancing of unquantifiable (though low) risk, possibly serious harm to a person or persons unknown if reoffending occurred, and known immediate human hardship if removal takes place. The decision to be made did not admit of a ready answer by some calculus. The decision as made was one that can be seen to have been reached by reasoning which was intelligible and directed towards, and related intelligibly to, the purposes of the power …

…

22    The task of the Court was to assess whether the decision of the Minister should be characterised as one which was not a reasonable and rational exercise of a power made in furtherance of the protection of the Australian community. The choice before the Minister was to leave Mr Stretton in the Australian community or remove him from it. The former would run a low risk of significant harm to one or more young vulnerable children (I see no necessary limitation of such to a class being Mr Stretton’s immediate family); the latter would cause Mr Stretton and his family great hardship. Whilst this was a difficult decision it was one about which minds could differ, and I do not see how the latter could be seen as “in excess of what, on any view, was necessary for the purpose it served” (even if that was a relevant question) as the primary judge said in [60]. The low risk of reoffending was, having regard to what happened, of behaviour that was uncontrolled and contributed to by alcohol. In circumstances where the risk of such reoffending could not be eliminated it is difficult to conclude that such risk (though low) was necessarily acceptable because of the hardship that removal would cause to him and his family.

The observations made at [16]-[17] in Stretton by the Chief Justice were expressly approved by the Full Court in CKL21 v Minister for Home Affairs [2022] FCAFC 70, at [59] and [67]. Those made, at [22], are not materially distinguishable from the present case.

33    Ground 1 is really just a solicitation to an impermissible form of merits review, or, if that be any different, to a repetition of the error identified by Allsop CJ in Stretton, at [21]:

… 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 …

34    Hence the feeling of déjà vu upon hearing Mr Jones’ submissions.

35    The Minister’s reasons reveal that he was very much aware of the circumstances of Mr Jones’ past offending conduct, and of the contribution that his alcoholism had made to that offending conduct. He was also aware of Mr Jones’ relationship with his present partner, B, and of the beneficial qualities of that relationship. The Minister permissibly embarked upon an evaluation of the future risk Mr Jones presented if he were permitted to remain in Australia. He did advert, to the extent it was rationally possible in the circumstances as presently revealed to him, to the subject of an opportunity to offend. The Minister noted that Mr Jones’ relationship was a relatively recent one and that, if it broke down, he could relapse into the alcoholism which had been conducive to past offending conduct as occasion presented itself in unsupervised contact with children. The resultant outcome was that, low though the Ministerially assessed risk was, such was the harm it would cause if Mr Jones were permitted to remain in Australia the Minister considered that his visa should be cancelled. To do other than recognise that the Minister could reasonably come to this conclusion would be to commit (or in my case recommit) the error identified on appeal in Stretton.

GROUND 2

36    Ground 2, even more than ground 1, excites a feeling of déjà vu, having regard to Stretton. The way ground 2 is pleaded, which was the way in which it was developed in submissions, is just an impermissible solicitation to the commission of the error identified by Allsop CJ in Stretton, at [21], quoted above.

37    The learned primary judge, who had the benefit of the Full Court’s judgment in Stretton, as well, notably as to unreasonableness as a ground of jurisdictional error, of the High Court in SZVFW, addressed a like submission made in the original jurisdiction in this way, at [32]:

It may be that the applicant’s submission was advanced at a higher level of abstraction and on the basis that when one takes into account the several circumstances mentioned in the particulars to Ground 2, the decision was unreasonable. However, a conclusion that the exercise of discretionary power is legally unreasonable is one which must necessarily be rarely made. In SZVFW the High Court acknowledged that the scope of the principle is extremely confined and a high threshold must be passed “because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion”, Kiefel CJ at 551 [11]. Although the Wednesbury unreasonableness test has been identified as not a complete description of the scope of the doctrine, it is a useful metric in which to analyse particular circumstances. On that basis, the Court might ask itself whether the decision was one that no other reasonable Minister could have reached: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Stretton); in the sense that there was only one right conclusion he could have reached. Here, that threshold is not met. In particular, the Minister has provided a rational and intelligible justification for the decision. He justified it in a transparent way by reaching conclusions on the not insignificant number of issues raised by Mr Jones in his submissions. As Mr McGlade submitted, the applicant did not substantively cavil with the conclusion that Mr Jones represented a low risk of reoffending. That conclusion alone could have justified the making of the decision depending upon the relative weight a particular decision-maker might give it. Secondly, as the Minister explained, the Australian community, as a norm, expects governments not to allow persons who have engaged in acts of family violence and committed serious crimes against children, including crimes of a sexual nature, to remain in Australia. At [81] of his reasons he concluded that the community expectations are that the government would not allow Mr Jones to remain in Australia. That finding is not challenged and it too could have justified the decision. Indeed, the Minister (at MR [116]) accorded it significant weight towards the cancellation of the visa. Even in circumstances where the passing of time might be said to render the consequences of Mr Jones’s deportation to the United Kingdom more burdensome, it would be well within the scope of a reasonable decision-maker to give these two other factors determinative weight.

38    On the appeal, the Minister submitted that this reasoning was unimpeachable. I agree.

GROUND 3

39    The learned primary judge identified a number of errors in the review ground upon which ground 3 in the appeal is based. First and foremost, the error his Honour identified was, at [44], “the evidence which demonstrates that the Minister did turn his mind to the issue of the impact which Mr Jones’s deportation might have on his current partner”.

40    In his reasons, the Minister stated, at [102]-[106]:

Strength, nature and duration of ties to Australia

(a)    Immediate family

102.    I note that Mr JONES has immediate family members in Australia, including his partner and eight siblings Attachment S. The following members of his family are Australian citizens, and have provided Statutory Declarations in support of him remaining in Australia: Attachments M1 – M4

•    His partner, Ms [CB]

•    His sister, Ms [DH]

•    His sister, Ms [GK]

•    His brother-in-law, Mr [CK]

103.    I note that [B] has children and grandchildren in Australia and is therefore unlikely to relocate to the United Kingdom with Mr JONES. She states she cannot imagine losing Mr JONES from her life, and ‘It would kill me if he were deported’ Attachment M1.

104.    I have taken into account that Mr JONES’ sisters and brother-in-law also report a close relationship with him. They report he is a much-loved family member, and also has nephews, nieces, and in-laws in Australia Attachments M2 – M4.

105.    I have had regard to the photographs provided on behalf of Mr JONES, showing him in the company of his partner, family members, and other members of his social networks Attachment R.

106.    I have considered the impact of cancellation upon Mr JONES’ immediate family in Australia and find that those persons would experience emotional hardship.

(emphasis in original)

41    It was put on behalf of Mr Jones that this passage in the Minister’s reasons exhibited an absence of active intellectual engagement or proper and genuine consideration of the very particular impact which Mr Jones’ removal from Australia would have on B. Reliance was placed on the line of authorities of which Hands is one.

42    It was not alleged, and there is in any event not a scintilla of evidence to support a conclusion that, either in this case or generally, the Minister had instructed his department that he did not care what representations were made or how long a visa holder had been here, or how old, sick or frail they were, or how low a risk might be, he was going to cancel the visa of any person who failed the character test but wanted reasons prepared to make it look as if he had considered cases on their individual merits. Such a conclusion would not just reveal the separate jurisdictional error of making a decision in accordance with a rule or policy without regard to the merits of an individual case. It would also reveal a serious departure from the trust and confidence reposed in the Minister by the Governor-General in appointing him one of the “Queen’s Ministers of State for the Commonwealth”, pursuant to s 64 of the Constitution. It would also reveal, on the part of the Minister’s department, a serious departure from the Australian Public Service Values, as specified in s 10 of the Public Service Act 1999 (Cth). Singular evidence would be required to reach such a conclusion, even on the balance of probabilities: s 140(2), Evidence Act 1995 (Cth).

43    The reasons of an administrator must always be read having regard to the statutory context in which the decision to which they relate falls to be made and whatever particular, resultant specification as to the content of reasons there may be, either flowing from the Act concerned or from s 25D of the Acts Interpretation Act 1901 (Cth): BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29, at [38], citing Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, at [32], [70] and [91]-[92].

44    This particular decision was made personally by a Minister of the Crown pursuant to a statutory power having the features noted above. The Minister was entitled to expect that his department would review the merits of the individual case and present him with decisional options and the drafts of related reasons for his scrutiny and decision. He was free to adopt those reasons, to amend them or to prepare his own.

45    At common law, there is no requirement for an administrator to furnish reasons for a decision: Public Service Board (NSW) v Osmond (1986) 159 CLR 656. An administrator may, nonetheless, choose to give reasons or may be obliged to do so by or under statute. If so, then what was stated in Wu Shan Liang and reiterated recently in Plaintiff M1/2021 in relation to such reasons must on judicial review translate into a principled restraint in relation to any discernment of inadequacy or revelation of jurisdictional error in those reasons. The business of public administration would become quite impossible if it were otherwise.

46    Accepting, as I do, that no such allegation of the kind mentioned is made and no such conclusion is open, it is just not possible, without ignoring what was stated in Wu Shan Liang and Plaintiff M1/2021 as to the way in which an administrator’s reasons are to be read, and without doing violence to the warning sounded in the latter case about creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”, to do other than reject ground 3. When one reads B’s statutory declaration, the Minister has captured, in [103] of his reasons, the very essence of the angst she apprehends as a sequel to a removal of Mr Jones to the United Kingdom. No more and no less could be expected of him in a decision made according to law.

GROUND 4

47    As to ground 4, the learned primary judge stated, at [55]:

In circumstances where the Minister has an unfettered discretion to take into account whatever matters he considers relevant to the exercise of the discretion, there is no foundation for the submission that he erred by failing to take into account a matter which was not advanced to him and which, if it arose, did so only by reason of the findings which he had made …

48    This statement, with respect, displays a correct understanding of what was said of s 501(2) of the Act in Nystrom, and of the submission which had been made to the Minister in Mr Jones’ case.

49    Having regard to Nystrom, and the absence of express reference in the submission to a risk of lapse into alcoholism if removed to the United Kingdom, the Minister was not obliged to give consideration to that subject. The learned primary judge correctly identified, at [54], by apt reference to Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, at [24] per Gummow and Callinan JJ, that the Minister was only obliged to respond to “a substantial, clearly articulated argument relying upon established facts”.

50    Further and in any event, as the last sentence of [64] of the Minister’s reasons, quoted above, reveals, the Minister was plainly aware of the contingency of a lapse into alcoholism if Mr Jones’ relationship with B broke down. As [103] of those reasons, also quoted above, reveals, the Minister was also aware that one cause of the breakdown in the relationship might be Mr Jones’ removal to the United Kingdom. Yet further, having expressly addressed the various (and considerable) health impediments identified in relation to Mr Jones in his solicitor’s submission, the Minister stated, at [91], “I accept Ms White’s submission that it is likely Mr JONES would ‘require more intensive care and support in the foreseeable future, and that his health will deteriorate further if he were forced to relocate to the United Kingdom’” (emphasis in original). Again paying heed to what was stated in Wu Shan Liang and Plaintiff M1/2021 in relation to an administrator’s reasons, it is not possible to read the Minister’s reasons otherwise than against the background of an awareness of a contingency of a relationship breakdown engendered lapse into alcoholism in the event of removal to the United Kingdom.

51    Ground 4 is therefore predicated on an error of law and errors of fact.

CONCLUSION AND DISPOSITION

52    For these reasons, each of the grounds of appeal must be rejected.

53    The appeal should therefore be dismissed, with costs.

54    For reasons I have given above as to the proper role of a reviewing court, dismissing Mr Jones’ appeal is not a judicial endorsement of the merits of the Minister’s decision, only recognition that the learned primary judge has not been shown to be in error in his conclusion that the decision was made according to law.

Associate:    

Dated:    22 August 2022

REASONS FOR JUDGMENT

CHARLESWORTH AND THOMAS JJ:

55    We have had the benefit of reading the reasons for judgment of Logan J in draft.

56    We gratefully adopt his Honour’s reasons for rejecting the fourth ground of appeal. In disposing of the remaining grounds, we do not consider it necessary to consider whether any judgment of the Full Court of this Court was disapproved by the High Court in Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (Plaintiff M1).

57    To the extent that the remaining grounds allege that the Minster’s decision was affected by legal unreasonableness, the relevant principles are conveniently summarised by Allsop CJ in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Stretton) as follows:

4    In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, the High Court made clear that legal reasonableness or an absence of legal unreasonableness was an essential element in the lawfulness of decision-making; Parliament is taken to intend that statutory power will be exercised reasonably:  see Li at [26] and [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J).

5    These statements of general principle in the three judgments (French CJ, and Hayne, Kiefel and Bell JJ, and Gageler J) variously drew upon and drew together a number of well-known expressions and bodies of principle including, and without repeating all citations:  the Constitutional necessity for legal control of discretion (power):  Shrimpton v The Commonwealth (1945) 69 CLR 613 at 629-630; the necessary confinement, explicit or implicit, of any statutory discretion or power by the subject matter, scope and purpose of the legislation:  Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505; the implied legislative intention to condition statutory discretionary power by a requirement that it be exercised reasonably:  Kruger v The Commonwealth (1997) 190 CLR 1 at 36; Abebe v Commonwealth (1999) 197 CLR 510 at [116]; Shrimpton at 620; Commissioner for Prices and Consumer Affairs (SA) v Charles Moore (Aust) Ltd (1977) 139 CLR 449 at 466; and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41-42; the necessity that a discretion be exercised according to the rules of reason and justice, not private opinion, according to law, and not humour, and within the limits that an honest and competent person would confine herself that is ‘legal and regular, not arbitrary, vague and fanciful’:  Sharp v Wakefield [1891] AC 173 at 179; Shrimpton at 620; R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; 198 ALR 59 at [9]; the illegitimacy of the exercise of a discretion in reaching a conclusion that no reasonable person could ever come to:  Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229, or where no sensible decision-maker acting with due appreciation of his or her responsibilities would so decide:  Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064; the requirement that the satisfaction or opinion of a decision-maker about the existence of a matter, in particular a jurisdictional fact, be reasonably formed:  Bankstown Municipal Council v Fripp (1919) 26 CLR 385 at 403; R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430; Buck v Bavone (1976) 135 CLR 110 at 118-119, (though not referred to in Li, Starke J in Boucaut Bay Company Ltd (in liq) v Commonwealth (1927) 40 CLR 98 at 101, approved by Windeyer J in Federal Commissioner of Taxation v Brian Hatch Timber Company (Sales) Pty Ltd (1972) 128 CLR 28 at 57, said that reasonableness here meant not dishonestly, capriciously or arbitrarily and upon a rational ground for the belief); the settled principles of appellate review of judicial discretion in House v The King (1936) 55 CLR 499, and the guidance found therein in the analogy with judicial review of administrative action:  Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 42; the principle that it is open to infer legal error if the result of the decision appears unreasonable assuming the correct question was addressed and the law was followed in the making of the decision:  Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360; the principle concerned with unreasonableness in the exercise of delegated law-making power – if such laws were partial and unequal or manifestly unjust, or by operation they involved oppressive or gratuitous interference with rights that could not be reasonably justified:  Kruse v Johnson [1898] 2 QB 91 at 99-100; and the fact that the conditioning of a power to be exercised reasonably has an analogy with the conditioning of the power with the obligation to afford procedural fairness:  Gageler J in Li at [92].

6    Each of the judgments in Li sought to give explanatory content to the concept of legal unreasonableness. As was discussed in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, the judgments in Li identified two different contexts in which the concept of legal unreasonableness was employed:  a conclusion after the identification of jurisdictional error for a recognised species of error, and an ‘outcome focused’ conclusion without any specific jurisdictional error being identified:  Singh at [44].

58    His Honour continued:

7    …  There is ‘an area of decisional freedom’ of the decision-maker, within which minds might differ. The width and boundaries of that freedom are framed by the nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law, in particular, of reasonableness.  …

8    The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality:  see Li at [30], [66] and [105].

…

11    … 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.  …

59    The source of the power exercised in the present case is that conferred under s 501(2) of the Migration Act 1958 (Cth) (the Act). As Allsop CJ said in Stretton, at [15], the purposes of that provision include the protection of the Australian community. From the outset, it may be observed that the focus of the written reasons of the Minister for cancelling Mr Jones’ visa are closely focussed on that objective, particularly in the assessment of whether Mr Jones might reoffend.

GROUND 1

60    The argument advanced in support of this ground turned heavily on the particular setting in which Mr Jones’ earlier offending had occurred. That offending involved the sexual abuse of multiple victims, including four minors, to whom the appellant had unsupervised access in a domestic setting. All of the victims were related to Mr Jones’ then wife. Counsel for Mr Jones submitted that the Minister failed to confine his assessment to the risk that Mr Jones would offend again in that particular way. It was submitted that it was not otherwise open to the Minister to find that Mr Jones was at risk of committing sexual offences in any other way, or in any other setting, including against children or adults in the wider Australian community.

61    That was said to follow from there being no evidence that Mr Jones had committed any sexual offence outside of a domestic setting and there being nothing to indicate that he would be motivated, or have the opportunity, to do so at any time in the future.

62    It was submitted that it was not reasonably open to the Minister to reject Mr Jones’ remonstrations that his risk of re-offending was “negligible”, because the circumstances appertaining to his prior offending had disappeared:  in his new domestic relationship he was refraining from alcohol abuse (a causal factor in his prior offending) and he did not have unsupervised access to children.

63    Counsel did not go so far as to submit that the only conclusion available to the Minister was that Mr Jones presented no risk to the Australian community at all. Such a submission could not be sustained in light of the evidence before the Minister which revealed the attitudes of Mr Jones’ new wife and her daughter (family members). As recorded in the Minister’s reasons, that evidence was as follows:

I also note from the statement of his partner, [B], that while she does not have any fear of Mr JONES around her grandchildren, ‘he is not to be out of my sight when we are around our kids.’ [B] also confirms that Mr JONES’ sisters similarly trusts [sic] him, yet also ‘keep an eye on him’.

64    The Minister’s description of the risk posed by Mr Jones as “low” plainly took into account the new domestic setting in which Mr Jones presently finds himself. That assessment accords with the view of the family members that Mr Jones should not be left alone with children. It is apparent that the family members did not consider the risk presented by Mr Jones as negligible.

65    A further obstacle for this ground of appeal is that it does not identify appealable error in the detailed reasons given by the primary judge for rejecting the same argument at first instance. They are as follows:

18        To some extent this submission proceeded upon the basis that the Minister had concluded that the risk of Mr Jones reoffending was limited to those circumstances. However, that basic foundation is not available for the simple reason that the Minister’s conclusion as to the risk of Mr Jones offending was not limited to offences against children. He had actually concluded that Mr Jones presented a low risk of ‘committing sexual offences’ (MR [64]); that the offences committed by Mr Jones were ‘child sexual offences and sexual offences generally’ (MR [65]) and that some of Mr Jones’s offences were committed against children (MR [49]). There is support in the material for the conclusion that the offences were not committed only against children. The report of the Australian Criminal Intelligence Commissioner of Mr Jones’s offending discloses that the first offences were committed in 1980 and 1981 against his niece and that the conviction was for the indecent treatment of a girl under the age of 16 (CB 22). It is noted that the circumstances of aggravation did not refer to a child under the age of 12 which, had the niece been of that age, one might have expected that it would have been reflected in the charges. It followed that the niece would have then been between the ages of 12 and 16. The second set of charges in relation to that niece were between 1987 and 1990. On that basis the victim would have been, at least, 18 on the first of those occasions and 21 on the latter. Those inferences were available and they tend to reflect the Minister’s implicit conclusion that some of the offences were not committed against children.

19    In these circumstances the Minister’s conclusion that Mr Jones represented a risk of reoffending was justifiably not confined to the commission of sexual offences against children. On that analysis, which should be accepted, the foundation for the alleged unreasonableness as to Mr Jones’s risk of reoffending does not exist, such that this ground necessarily fails.

20    This ground also fails because it erroneously assumes that the Minister should have only considered Mr Jones reoffending in a substantially identical manner to that in which he had committed the previous offences and, in particular, against children who were relatives and who were in his unsupervised company. No submission had been made to the Minister on behalf of Mr Jones that he was required to deal with the issue in that way and there is nothing in s 501(2) which suggests such a limitation should apply. Indeed, it is apt to observe that the submissions given to the Minister on behalf of the applicant in relation to the proposed cancellation did not specifically assert that any risk of reoffending was restricted to the specific type of prior offending, although they did identify the relevant type of offending was sexual offending (CB165). Those submissions relied on the report of a Professor Freeman whose opinion was directed to the possibility of Mr Jones committing sexual offences generally. In those circumstances it is not surprising that the Minister did not confine his consideration of this issue in the manner in which the applicant now submits he should have.

21    As was submitted by Mr McGlade for the Minister, even if the premise of the applicant’s submissions were accepted, no case was advanced to the Minister that Mr Jones was not at risk of reoffending because he would not have unsupervised access to children in a domestic environment in the future. Nor was there any evidence that the occasions on which Mr Jones might have that access in the future would be limited. In the postulated scenario of Mr Jones’s relationship with his partner failing and his resumption of alcohol abuse, there was no reason to think that an occasion would not arise in which he was in the unsupervised presence of children in a domestic setting or otherwise. It should not be forgotten that the issue involves conjecture as to what might occur in the future and all that the Minister is able to do is hypothesise as to what might occur. Here the Minister was apparently concerned with the possibility of Mr Jones engaging in future offences of a sexual nature, including as against children. In so doing he was entitled to, and probably could only, address the potential for that to occur at a relatively high level generality. To attempt to assess the possibility of the commission of specific future criminal conduct would require the Minister to either develop superhuman prescience or engage in what could only be wild speculation which would ultimately be meaningless. In order to meet the standard which it is now submitted the Minister must meet, he would be required to postulate the wide range of particular permutations of events which might arise if Mr Jones’s current relationship broke down, including how Mr Jones might behave as a result. It would then be necessary to postulate the infinite variety of circumstances in which Mr Jones might find himself in the unsupervised presence of children. Such circumstances could be myriad and it would necessarily involve substantive conjecture to identify them. It is not necessary for a decision-maker to descend to that level of granularity in order to ascertain whether the risk of reoffending exists. Such an analysis could only ever be required if the Minister, instead, sought to evaluate the probability of a person reoffending in a manner identical to past offending. That was not attempted in this case.

22    The essence of this ground of review is that the Minister did not consider whether Mr Jones might come into contact with children in the future and, consequently, the conclusion about his risk of reoffending is unreasonable. On that basis, Mr McGlade also submitted that there is nothing to suggest that the Minister did not turn his mind to the issue of whether Mr Jones might, in the future, be in unsupervised contact with children. If it is assumed that the Minister’s finding was that Mr Jones was a low risk of again engaging in the precise criminal acts in respect of which he had been convicted, given the extensive consideration apparent on the face of the Minister’s reasons it cannot be assumed that he did not turn his mind to the possibility that circumstances might arise in the future where that might occur. It is for the applicant to establish that a matter has not been taken into account in the exercise of a power and a conclusion to that effect will not be lightly made:  BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29, 45 [38]; Singh at 210 [37]. The Minister was not required to expose his entire reasoning process about the risk of Mr Jones reoffending nor make findings about any particular matter. He may well have considered the question of whether Mr Jones may come into unsupervised contact with children in the future but rejected that as a necessary element of his conclusion on the basis that to do so would involve speculation.

(emphasis in original)

66    We would reject the arguments underpinning the first ground of appeal for the same reasons articulated by the primary judge.

GROUND 2

67    The submissions in support of this ground of appeal were to the effect that the outcome of the decision was “unjust” because it worked a hardship on Mr Jones, and other persons affected by the cancellation of his visa, that was out of proportion with the low risk that he presented to the Australian community. Counsel submitted that disproportionality rendered the decision “unjust” and therefore unreasonable. The proposition that a disproportionate or “unjust” response equates to a legally unreasonable decision was said to find support in the reasons of Hayne, Kiefel (as her Honour then was) and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li), at [76]:

As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion ‘if upon the facts [the result] is unreasonable or plainly unjust’. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

(footnote references omitted)

68    To similar effect see Gageler J at [110].

69    All members of the High Court concluded that a discretionary decision of an administrative tribunal to grant an adjournment was legally unreasonable, hence the focus in the reasons on the outer bounds of a discretionary power. The references to a decision being “unjust” should not be understood as erecting a discrete test for legal unreasonableness standing apart from the body of principle explained in the whole of the judgment and in the authorities that have followed. Nor should the various judgments in Li be understood as characterising a decision as “unjust” merely because it works an extreme hardship on the person affected by it. Whether or not a decision is “unjust” is not to be discerned in a manner unmoored from the statute and without regard to the source, purpose and scope of the provision pursuant to which it is made.

70    The simple proposition underlying the submissions in support of this ground was that the decision to cancel Mr Jones’ visa was disproportionate in the extreme, having regard to the low risk he posed, and the decision was therefore unjust and therefore legally unreasonable.

71    In rejecting the second ground for judicial review, the primary judge considered whether the arguments advanced on behalf of Mr Jones might meet the test for irrationality or unreasonableness of the kind discussed in Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223, that is to ask whether the decision was so unreasonable that no reasonable decision-maker could have arrived at the same outcome. His Honour reasoned:

32    …  Although the Wednesbury unreasonableness test has been identified as not a complete description of the scope of the doctrine, it is a useful metric in which to analyse particular circumstances. On that basis, the Court might ask itself whether the decision was one that no other reasonable Minister could have reached:  Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Stretton); in the sense that there was only one right conclusion he could have reached. Here, that threshold is not met. In particular, the Minister has provided a rational and intelligible justification for the decision. He justified it in a transparent way by reaching conclusions on the not insignificant number of issues raised by Mr Jones in his submissions. As Mr McGlade submitted, the applicant did not substantively cavil with the conclusion that Mr Jones represented a low risk of reoffending. That conclusion alone could have justified the making of the decision depending upon the relative weight a particular decision-maker might give it. Secondly, as the Minister explained, the Australian community, as a norm, expects governments not to allow persons who have engaged in acts of family violence and committed serious crimes against children, including crimes of a sexual nature, to remain in Australia. At [81] of his reasons he concluded that the community expectations are that the government would not allow Mr Jones to remain in Australia. That finding is not challenged and it too could have justified the decision. Indeed, the Minister (at MR [116]) accorded it significant weight towards the cancellation of the visa. Even in circumstances where the passing of time might be said to render the consequences of Mr Jones’s deportation to the United Kingdom more burdensome, it would be well within the scope of a reasonable decision-maker to give these two other factors determinative weight.

33    An issue arose between the parties as to whether the decision was of a political nature or not. In the circumstances it is not necessary to reach any conclusion as to that issue. Nevertheless, the alleged unreasonableness arose in relation to a substantive as opposed to a procedural matter and one which involved a matter of policy; namely putting the protection and expectations of the Australian public ahead of the personal interests and hardships which might be suffered by the individual concerned. The authorities clearly demonstrate that it is harder to infer the existence of legal unreasonableness in such circumstances because the power to either refuse to grant or cancel a visa is a substantive power and not procedural in nature:  Stretton at [71]; Eden at [20].

34    The difficulty for the applicant in this case is that the offending was of a very serious nature and there remained a risk, albeit a low risk, of reoffending. That had the potential to cause physical and psychological injury to members of the Australian community. The Minister also reached the conclusion that the expectations of the Australian public is that persons who have committed the offences which Mr Jones had should not be entitled to retain their visa. The Minister was entitled to give such matters significant if not overwhelming weight in comparison to the personal hardships which might be suffered by Mr Jones. As Mr McGlade submitted, there have been a number of cases where the individual hardship of the applicant was of a more significant magnitude but that was insufficient to sustain a finding of unreasonableness in respect of the decision to cancel the visa:  see Stretton. That is simply because of the breadth of the discretion involved and the nature of the matters which are relevant to its exercise. This proposition is succinctly articulated by the learned authors of Judicial Review of Administrative Action and Government Liability (7th edition, 2021) at [6.40]:

The variability of the standard for establishing unreasonableness is vividly illustrated by decisions allowing visa refusals and cancellations, and removal of non-citizens who have spent almost their entire lives in this country. There is simply no room for arguing that these decisions are so unreasonable in their outcome as to be beyond power, because it is clear that the Act empowers Ministers to make decisions in the government’s conception of the national interest, even though the impact on affected individuals may be ‘harsh, or even cruel’. (Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at 640 [41] (internal quotation marks and references omitted). See also SYLN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1986 at [71].)  …

35    Those observations apply in the present case.

72    There is no error of principle in that passage, nor in its application to the facts as found by the Minister.

73    The question of whether the low risk presented by Mr Jones was a tolerable one was to be made by the Minister as the repository of the power conferred by s 501(2) of the Act. The Minister considered that the risk presented to the community outweighed all other considerations, including the hardships that would befall Mr Jones and his family members should he be removed from Australia. It was plainly within the bounds of the statute for the Minister to cancel Mr Jones’ visa, notwithstanding the presence of strong countervailing considerations. The primary judge did not err in reaching the same conclusion.

74    The second ground of appeal must therefore fail.

GROUND 3

75    This ground turns on the content of the Minister’s obligation to consider the submissions and evidence concerning the effect the cancellation of Mr Jones’ visa would have on his wife, B. Counsel for Mr Jones submitted that the Minister did not engage with the evidence at a level commensurate with its nature and importance. Counsel submitted that the Minister had merely bundled the interests of B into a global consideration of the hardship that would befall all of the appellant’s family members. It was submitted that the banal description “emotional hardship” employed by the Minister evidenced a failure to have regard to B’s unique status and circumstances as Mr Jones’ wife.

76    The majority in Plaintiff M1 warned against the ascription of labels to define the degree of engagement with evidentiary materials or “claims”, lest the label take on the status of a uniform test applicable in all cases. However, as the majority went on to say, at [25]:

It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations …

(footnote references omitted)

77    The representations to which the majority there referred were representations made in a different statutory context, under s 501CA(4) of the Act. We are here concerned with the Minister’s consideration of submissions made by Mr Jones upon being afforded procedural fairness under s 501(2) of the Act. In that context, we accept the proposition that the submissions and evidence concerning B bore on an important topic, not only because of the degree of hardship asserted by her, but because the Minister approached the decision on the basis that it was necessary and appropriate to have regard to Mr Jones’ ties to Australia and the effect of the decision on members of the Australian community.

78    Whether a decision-maker has failed to engage with submissions and evidence to the requisite degree is a question of fact in respect of which Mr Jones bore the onus at first instance.

79    In our view, the complaint that the Minister described the evidence concerning B as “emotional hardship” is, in reality, a complaint that the Minister ought to have been more moved by the evidence and that he should have afforded B’s interests greater weight. It amounts to an attack on the merits of the decision and does not reveal jurisdictional error.

80    Further, as with the other grounds of appeal, the submissions in respect of this issue did not reveal appealable error on the part of the primary judge. In rejecting the corresponding ground of judicial review, his Honour said:

38    Although the reasons of the Minister in relation to the issue of Mr Jones’s family ties was relatively brief, it is relevant that he referenced the statutory declaration of Mr Jones’s partner as well as the declarations of Mr Jones’s two sisters and his brother-in-law. It is also relevant that he particularly recorded the statement by Mr Jones’s partner as to the impact which the deportation of Mr Jones would have upon her. At [103] of the reasons he said:

103.    I note that [the applicant’s partner] has children and grandchildren in Australia and is therefore unlikely to relocate to the United Kingdom with Mr JONES. She states she cannot imagine losing Mr JONES from her life, and ‘It would kill me if he were deported’ Attachment M1.

39    It would appear that the applicant’s concern is the brevity by which the Minister expressed his conclusions on this issue where he accepted the evidence which was presented. At [106] he said:

106.    I have considered the impact of cancellation upon Mr JONES’ immediate family in Australia and find that those persons would experience emotional hardship.

…

43    Mr Karp submitted, in somewhat explicit terms, that the Minister’s conclusion that Mr Jones’s partner would suffer ‘emotional hardship’ were he to be deported, did not begin to engage with the evidence of the strength of their relationship and the effect on her were it to be brought to an end. He further submitted that the Minister did not analyse the partner’s evidence and nor did he identify whether he rejected or doubted it. It was further submitted that the Minister was required, in these circumstances, to draw conclusions as to the degree of emotional hardship or anguish that Mr Jones’s deportation would cause.

44    There are substantial difficulties with these submissions. The first concerns the evidence which demonstrates that the Minister did turn his mind to the issue of the impact which Mr Jones’s deportation might have on his current partner. He expressly referenced the declarations of the relatives who claimed they would be affected by an adverse decision, including that of Mr Jones’s partner. He then identified that the partner had said that she cannot imagine losing Mr Jones and then expressly cited that part of the statement in which she said that such a decision would ‘kill’ her. The specific referencing of this particular part of the lengthy statement establishes that the Minister expressly addressed and considered the evidence relating to the impact of the cancellation of the visa on her. That conclusion is supported by the Minister’s earlier reference (MR [83]) to the submissions made on Mr Jones’s behalf, including that his removal from Australia would have a “devastating impact” on his partner.

45    There is no question that the Minister considered the issue raised by Mr Jones, being that his deportation would have a significant impact on his partner. His reference to the specific evidence on which the issue relies undermines the possibility that he did not give it genuine consideration. In circumstances where that relevant part of the partner’s statement was cited in the reasons as opposed to the remaining 34 paragraphs, it is very difficult to reach the conclusion that the specific issue was not weighed in the exercise of power. It is also relevant that the evidence recited by the Minister was the totality of the evidence on that topic. The statements by the partner in her statutory declaration (at [34]) were concise and consisted of no more than the Minister identified. It was not suggested that he failed to have regard to some additional or elaborating information. In such circumstances it is difficult to see what further the Minister might have done. He was not obliged to completely accept the partner’s assertion as to the depth of the emotional hardship which would be suffered although it is apparent that it was accepted to some degree and that this weighed in favour of not cancelling Mr Jones’s visa. On the other hand, it is not necessarily apparent that he did not fully accept the partner’s evidence. The reasons must be read ‘fairly and not in an unduly critical manner’ and ‘in light of the content of the statutory obligation pursuant to which it was prepared’:  BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29, 45 [38]. They are not required to refer to every piece of evidence relied upon or exhibit every thought process engaged in whilst reaching conclusions on the issues in question. Read in this light the reasons in this case demonstrate that the Minister turned his mind to the issue raised, considered the relevant evidence, gave it active intellectual attention and reached a conclusion about it:  He v Minister for Immigration and Border Protection (2017) 255 FCR 41, 51 [52]; Minister for Home Affairs v Omar (2019) 272 FCR 589, 605 [36(c)].

46    …  It must be kept in mind that it was not suggested that the partner’s statement that Mr Jones’s deportation would ‘kill’ her was intended to be taken literally, but rather that she would suffer significant emotional hardship. Here the Minister confronted the essential evidence on this issue and reached a conclusion about it in the applicant’s favour. In truth, the complaint is one by which the applicant asks the Court to usurp the role given by the Parliament to the Minister and evaluate for itself the strength of the partner’s feelings and the weight which that should have in the evaluative process. That is beyond the scope of this Court’s authority.

(emphasis in original)

81    There is no appealable error in that detailed reasoning. We respectfully agree with it and so reject the third ground of appeal.

82    There should be orders dismissing the appeal with costs.

Associate:    

Dated:    22 August 2022