Federal Court of Australia

Toki v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 164

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s name be changed to Minister for Immigration, Citizenship and Multicultural Affairs.

2.    The appeal be dismissed.

3.    The appellant pay the respondent’s costs as agreed or taxed under r 40.12 of the Federal Court Rules 2011 (Cth).

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 appellant has appealed from a decision of the Federal Court of Australia: Toki v Minister for Home Affairs [2022] FCA 44 (J). In that decision, the primary judge dismissed an application for judicial review of a decision of the Minister of Home Affairs made personally on 21 October 2020 not to revoke the cancellation of the appellant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth).

2    The appellant was born in the Cook Islands and is a citizen of New Zealand. He is 56 years old and has lived in Australia since 1981, when he was 14 years old. Since his arrival in Australia, the appellant has had a significant criminal history. In 1982, he committed his first offence. In 2000, the appellant was convicted of murdering his de facto wife and was subsequently sentenced to 22 years’ imprisonment. The appellant committed a number of offences in prison for which he was convicted. In 2009, he was convicted of two counts of causing malicious damage by setting his cell on fire. On this occasion, he was found by the Court not guilty on the grounds of mental illness and ordered to be placed in a mental health hospital where he remains.

Criminal History

3    Between 1982 and 1995, the appellant was convicted of several violent offences, some of which included maliciously inflicting bodily harm, assault occasioning actual bodily harm, assault on a police officer, common assault and malicious wounding. He received sentences including terms of imprisonment of up to 18 months. In 1986, the appellant was convicted of several dishonesty offences in Queensland.

4    In 1999, the appellant was convicted of robbery in company and sentenced to three years and eight months’ imprisonment.

5    In 2000, the appellant was convicted for the murder of his de facto wife. In 2001, he was sentenced to 24 years’ imprisonment, with a non-parole period of 18 years. Then in 2003, the New South Wales Court of Criminal Appeal quashed the original sentence and instead imposed on the appellant a sentence of 22 years’ imprisonment, with a non-parole period of 16 years and six months.

6    In 2002, the appellant was convicted of “detain for advantage without causing injury to victim” and was sentenced to eight years’ imprisonment, with a non-parole period of two years.

7    In March 2009, the appellant was convicted of assaulting a law officer and sentenced to 15 months’ imprisonment. In April 2009, the appellant was charged with two counts of malicious damage by fire, but was found not criminally guilty on the grounds of mental illness as referred to at [2] above.

Visa cancellation

8    On 3 October 2018, a delegate of the Minister cancelled the appellant’s Special Category (Class TY Subclass 444) visa pursuant to s 501(3A) of the Act because the appellant had failed to pass the “character test”. This was on the basis that he had a “substantial criminal record” as a result of being sentenced to a term of imprisonment of 12 months or more, which was being served on a full-time basis: s 501(6)(a) and s 501(7)(c).

9    At the time of notifying the appellant of the delegate’s decision, the appellant was provided with particulars of the information relied upon in making the cancellation decision under s 501(3A) of the Act and was invited, pursuant to s 501CA(3)(b), to make representations about the revocation of that decision. This is because, despite cancellation, the Minister may revoke the original decision if the person makes representations and the Minister is satisfied that the person passes the character test (s 501CA(4)(b)(i)) or if there is “another reason” why the original decision should be revoked: s 501CA(4)(b)(ii).

10    On 16 October 2018, the appellant accepted the Minister’s invitation and made representations. On 1 July 2020, the Department of Home Affairs wrote to the appellant inviting him to comment on further information which the Department had received which it may take into account in determining whether or not to revoke the original decision to cancel his visa. The Department also invited the appellant to address each paragraph of the then new Ministerial Direction 79 that was relevant to his circumstances.

11    On 21 October 2020, the Minister decided personally not to revoke the cancellation of the appellant’s visa. The Minister found that the appellant did not pass the character test and that there was not another reason why the original visa cancellation decision should be revoked pursuant to s 501CA(4) of the Act.

12    This appeal raises two questions. First, whether the Minister fell into jurisdictional error “in that he was unreasonable, or made findings without a logically probative basis”, in: (i) finding that there was no evidence that the appellant had family support when there was such evidence; and (ii) failing to revoke the cancellation of the appellant’s visa given all the circumstances. Secondly, whether the Minister failed to consider two relevant considerations: the nature of the appellant’s forensic mental health status and the likely trajectory of his treatment or lack thereof without a visa; and that there was evidence of ongoing regular contact with his family.

Summary of the relevant statutory provisions

13    Section 501(3A) provides for the mandatory cancellation of a visa if the Minister finds that the person does not pass the character test:

501    Refusal or cancellation of visa on character grounds

…

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

14    A person will not pass the character test where they have a substantial criminal record, which arises where, inter alia, a person has been sentenced to a term of imprisonment of 12 months or more: s 501(6)(a) and (7)(c).

15    The Minister may revoke the original decision (made under s 501(3A)). Relevantly, s 501CA provides:

501CA     Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(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.

...

(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.

The Minister’s decision not to revoke the cancellation of the appellant’s visa

16    Given there was no dispute from the appellant that he did not pass the character test prescribed by s 501(6) by reason of his criminal history, the Minister’s decision focused on whether there was “another reason” why the original decision should be revoked pursuant to s 501CA(4)(b)(ii).

17    The Minister identified and summarised the representations the appellant made to him identifying “another reason” why the original decision should be revoked, at [12]:

12.    In the representations/documents submitted by or on his behalf, Mr TOKI has articulated reasons why the original decision should be revoked, which include:

•    His removal from Australia would result in his isolation from all his family and friends, as well as all support services currently in place for his mental health.

•    If he returned to the Cook Islands there would be inadequate mental health services available to him there.

•    At the time of his offences he was ‘not managing symptoms of major mental illness effectively, or having any interventions for personality disorder’.

•    He is currently engaging with rehabilitation programs at the Forensic Hospital.

•    He is at low risk of reoffending due to significant progress in his ‘own insight into mental illness, awareness of early warning signs and triggers, and transparency regarding previous environments that lead to offending behaviour’.

•    He is regarded as polite and considerate by several corrections staff who have submitted letters of support.

•    He is likely to remain in the Forensic Hospital until such time that the Mental Health Review Tribunal is satisfied that his level of risk can be managed in a medium security unit.

•    As a forensic patient, upon release to the community he will be subject to a community treatment order with restrictions on matters such as conduct, medication, relationships and engagement with mental health.

(Emphasis in original).

18    The Minister then considered whether he was satisfied that there was another reason to revoke the original decision.

19    First, the Minister identified the extent of the impediments the appellant would face if he were removed, at [13]–[19]. We have extracted [13]–[19] in full because of their relevance to this appeal:

13.    I have had regard to the impediments that Mr TOKI will face if removed from Australia to his home country of the Cook Islands in establishing himself and maintaining basic living standards.

14.    I have taken into account Mr TOKI’s submission that he would be isolated from all his family in Australia and that, as he has no family or friends living in the Cook Islands or New Zealand, he would be isolated from his current mental health supports. He also submits that mental health services in the Cook Islands are very basic and limited, which could lead to a deterioration in his mental health conditions.

15.    I accept that Mr TOKI’s removal from Australia will leave him without familial support, which may in turn result in some difficulty in establishing himself in a country he has not lived in since his childhood, I do not consider he will encounter any significant cultural or linguistic issues, given he spent his childhood in the Cook Islands or New Zealand, and English is an official language in both countries.

16.    I note that there is no evidence other than Mr TOKI’s own statements that he has family support in Australia, as no family members have provided submissions for the current consideration. Therefore I am not persuaded that he would be substantially worse off in the Cook Islands than Australia, in this respect.

17.    I accept that, in respect of any needs for psychological treatment that he may have, and in light of a 2015 report by the World Health Organisation, which indicates that mental health treatment resources in the Cook Islands are very basic and limited, it is very unlikely that they would compare in standard to what Mr TOKI would receive in Australia, but I find that he will have access to mental health services commensurate with other citizens in similar circumstances. I acknowledge that these might not be sufficient to manage Mr TOKI’s particular mental health issues, which are very serious.

18.    I note that Mr TOKI’s own statements indicate that he will not be released from criminal custody until the NSW Mental Health Review Board is satisfied that it is safe to do so. Accordingly it would seem that he would then present a lower risk of mental deterioration, though I acknowledge that this would be partly conditional on intensive follow up monitoring that is normal in such cases as his, in Australia.

19.    Finally, I consider that as a New Zealand citizen, Mr TOKI would be able to live in that country, where he would have access to mental and other health services comparable with those available in Australia and would therefore have appropriate support in managing his mental health.

20    Secondly, the Minister had regard to the strength, nature and duration of the appellant’s ties to Australia, at [20]–[25] which are extracted as follows:

20.    In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, 1 have had regard to the strength, nature and duration of Mr TOKI’s ties to Australia.

21.    I have given less weight to this consideration, as Mr TOKI started to offend as a juvenile in 1982, soon after arriving in Australia in 1981, and he continued to offend repeatedly after that, often violently, in the 39 years he has been in Australia he has spent only about 13 years in the community, because of the many substantial custodial terms imposed on him. I find that Australia has a low tolerance of criminal conduct for people, such as Mr TOKI, who have been participating in, and contributing to, the community only for a limited period.

22.    Mr TOKI has the following family and social ties to Australia: all of his immediate family, a sister and three brothers, reside in Sydney Australia, as do six uncles/aunts, 12 nieces/nephews and 12 cousins. I note that no representations have been received from any of them and there is no information available to me to show that their relationships with Mr TOKI are particularly close.

23.    Both of Mr TOKI’s parents are deceased and are buried in Australia. I accept that this may create some emotional link to Australia for him, but obviously his parents’ needs for him are not a factor to be considered.

24.    I note information indicating that Mr TOKI has a son, who would now be approximately 23 years of age. There are no submissions before me regarding Mr TOKI’s current relationship with his son and therefore I am unable to make any assessment of the significance of their current relationship, if any, or consider the impact my decision would have upon it.

25.    I have considered the effect of non-revocation upon Mr TOKI’s immediate family in Australia and accept that those persons may experience emotional hardship. I note that there are no submissions before me from any of Mr TOKI’s family members attesting to the nature and significance of their relationship with him and as such, I give this consideration little weight.

21    Thirdly, the Minister considered the protection of the Australian community, at [26]–[39].

22    The Minister expressed his view that “all violent offences are very serious” and noted that the appellant “has an extensive criminal history, dating from 1982, when the Children’s Court of New South Wales placed him on probation for Assault, and which includes many such offences, up to and including the most serious category of violent offending, Murder, and with the victim being his domestic partner” (emphasis in original): at [27].

23    The Minister thereafter considered the appellant’s extensive criminal history, including his conviction in 2010 for assault occasioning actual bodily harm, described by the sentencing judge as “a very serious unprovoked attack” of a fellow prisoner which involved head-butting the victim three times, and while he was semi-conscious on the floor, kicking him in the head leading to the victim’s hospitalisation for two weeks: at [28].

24    With respect to the murder of the appellant’s de facto wife, the Minister stated:

33.    Sentencing remarks and appeal judgments give details of the circumstances of the Murder offence. Briefly, Mr TOKI and the victim had been in a relationship for some years, which the trial judge said had ‘a history of repeated acts of violence’ perpetrated by Mr TOKI on the victim. At the time of the offence on 16-17 January 1999, Mr TOKI, the victim and another couple had been drinking together and went back to the other couple's home. At about 7:00pm Mr TOKI took offence at something said and left. The victim later spoke to him by telephone and then asked the others if she could stay the night, as she did not want to go home. In the early hours of the next day Mr TOKI broke into the premises, where he found the victim and the other two persons in bed, naked. He told her to get dressed and they left. At about 12:30 pm the next day an ambulance was summoned to the home of Mr TOKI and the victim, where they found her lying naked on the floor, covered by a sheet. She showed multiple injuries and was convulsing. Mr TOKI told ambulance officers that the victim had taken drugs and had struck her head after having a fit in the shower [sic]

34.    The court found Mr TOKI had murdered his de-facto wife by beating her with ‘both his fists and with the use of a piece of wood as a weapon’. An autopsy found that the victim had suffered 79 injuries, including fresh bruising all over the body, a major wound to the back of the head and 11 fractured ribs. The trial Judge remarked that ‘the offence, however, serious as it is ... was not premeditated or planned’.

(Emphasis in original)

25    The Minister noted the “vulnerability” of the victim the appellant had punched in 1999. The Minister also noted the number of other violent offences which the appellant had committed between 1982 and 1995: at [35]–[36].

26    Fourthly, as to the nature and seriousness of the appellant’s conduct to date, the Minister concluded, at [39]:

Overall, given the recidivistic nature of Mr TOKI’s very serious violent offending since his first recorded court appearance, giving particular regard to his conviction for Murder of his domestic partner, as well as the various custodial sentences imposed on him, I find his criminal conduct to be very serious.

(Emphasis in original.)

27    As to the risk to the Australian community through reoffending, the Minister considered the appellant’s record of “exceptionally serious violent criminal offending, including Murder in a domestic setting” (emphasis in original) and was of the view that “[i]f he were to reoffend, it is very likely that the consequences would be potential [sic] of a very serious kind, including major physical injury and possibly death to member/s of the Australian community”: at [41]. However, the Minister considered the submissions of the appellant and appeared to accept that the appellant’s “offending has been closely linked to severe and ongoing mental health issues” (at [42]) and by example referred to the Court’s finding in 2009 regarding arson offences, that the appellant was suffering a “relapsing psychotic illness of either a bipolar disorder type or a schizo-effective disorder ongoing since 1999” and had not taken the necessary medication at the time of the offences: at [43]. This appeared to be tempered by the Minister noting that much of the appellant’s criminal history predated 1999 and that with respect to his conviction and sentencing for murder, the trial judge noted that there was “no suggestion that at the time of the murder or on any other occasion that the prisoner was inflicting injuries upon the deceased, that he did so under the effects of a mental disorder”: at [44]–[45]. As a consequence, the Minister was of the view that whilst he accepted the appellant suffers from serious mental health disorders, he was “not satisfied that these conditions have been principally to blame for all of [the appellant’s] offending”: at [47].

28    The Minister gave specific consideration to the submission made by the appellant that he would “present a low risk of reoffending because of the restrictions that he will be under as a forensic patient in the community”. This included the Minister noting that the appellant will “not be released until both the NSW Parole Board and the Mental Health Review Board consider that his various conditions have reached a state that makes it relatively safe to do so”. Whilst the Minister recognised the “value” of these factors, he was concerned that the appellant had a “history of non-compliance with parole and other judicial orders and indeed a history of non-compliance with medication while incarcerated”. This gave him “pause” in assuming compliance with community treatment orders such that he had “some doubt” that such orders “will effectively remove [the appellant’s] risk of reoffending”. Therefore, in the Minister’s view, “some ongoing risk” of reoffending remained: at [46]–[47].

29    The Minister then went on to consider the appellant’s submissions as to his current engagement in rehabilitation programs, his efforts in this regard, the insight he has obtained, together with his positive engagement with others. However, the Minister concluded that despite these submissions, “there is an ongoing risk that Mr TOKI will re-offend”: at [48]–[50].

30    Ultimately, the Minister concluded that the cancellation of the appellant’s visa should not be revoked, including due to the “significant weight” being given to the very serious nature of the crimes committed and his finding that “the Australian community could be exposed to significant harm should Mr TOKI reoffend in a similar fashion”, a possibility of which could not be ruled out: at [53]–[54].

The primary judge’s reasons

31    Before the primary judge, the appellant claimed that the Minister fell into jurisdictional error on the basis that the decision was legally unreasonable as: first, it included findings made without a logically probative basis because of: (a) a finding, at [19] of the Minister’s reasons, that given the appellant was a New Zealand citizen, he would have access to mental and other health services comparable to those in Australia; and (b) an incorrect finding, at [16] of the Minister’s reasons, that there was no evidence other than the appellant’s own statements of family support with reliance on a document that was before the Minister entitled “Monthly Progress Report 2020” from Justice Health and Forensic Mental Health Network; and secondly because (c) when the appellant’s circumstances were considered, overall, unreasonableness could be objectively inferred from the outcome. Only (b) and (c) are relevant to the appeal.

32    The primary judge dismissed ground (b), that the Minister erred in finding, at [16] of his reasons, that there was no evidence other than the appellant’s own statements that he had family support, by reason of the Minister having before him the Monthly Progress Report, on the following basis, at J[38]:

This ground was not included in the original application but the Minister had no difficulty addressing it and it was sufficiently arguable. I grant leave to amend to include it in the application. However, in my view this ground cannot succeed, because upon proper scrutiny the statement made by the Minister is correct. The evidence discloses that there was in fact no submission or representation provided by family members for his consideration. The single statement in the Monthly Progress Report is to record “regular contact” via an AVL link. This does not provide material evidence of family support for Mr Toki. This ground must be dismissed.

33    In support of ground (c), that the Minister’s decision not to revoke the cancellation decision was, when the appellant’s circumstances were considered overall, unreasonable, the appellant relied upon the following factors (at J[40]):

(i)    That he had come to Australia at about the age of 15, and had therefore lived in Australia from the age of 15 to 54 at the time of the decision;

(ii)    That all of his immediate family and many of his extended family resided in Australia;

(iii)    That he had a long history of serious mental illness;

(iv)    That he had suffered seriously while mentally ill in prison;

(v)    That he has made significant progress towards rehabilitation.

(vi)    That if the cancellation of his visa were revoked, and he remained in Australia and able to progress towards release, he would not be released unless and until the Mental Health Review Tribunal judged that this would be safe.

(vii)    That his many years in prison, noted by the Minister, mean that he is highly institutionalised and will need assistance to adjust to life at large in the community.

(viii)    That if the cancellation of the visa was not revoked, the Applicant would not progress to full rehabilitation and would very likely not receive the care he needs for his mental health, whether in New Zealand or in the Cook Islands.

(Court book references omitted.)

34    The primary judge concluded that the Minister’s decision did not fall outside the bounds of decisional freedom left to him by the scheme of the Act, relying on BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; 277 FCR 420 at [129]–[138]: J[44]. His Honour noted that the Minister had taken into account the appellant’s circumstances by addressing in his reasons the age that the appellant had come to Australia and time spent here and that his removal would leave him without family support, which was diminished in weight by the absence of family statements: at J[45]. The primary judge, in this context, noted that the Minister had before him the Monthly Progress Report but was not obliged to mention in his decision all of the evidence before him. The primary judge then referred to the Minister’s repeated reference to the appellant’s long history of mental illness (at [17], [18], [29], [42], [43]–[47]) and his acknowledgement of the significant progress towards rehabilitation (at [48], [49]): at J[46].

35    The primary judge then referred to the appellant’s contention, repeated in this appeal, that the effect of cancellation would deprive him of the opportunity to make a recovery to the point of being released into the community because he would never progress to a Medium Secure Forensic Psychiatry facility or the stage of a supervised release and “may as a result remain a Forensic Mental Health Patient indefinitely”. At J[53] the primary judge found, relying on certain observations from Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333 at [56]–[62], that:

(a)    the appellant will not be removed to immigration detention or deported until he has completed his present custodial sentence;

(b)    the appellant will not be released until the Mental Health Review Tribunal considers that it is appropriate for this to take place;

(c)    the Minister, on instructions, confirmed that while the appellant was serving his sentence, he would not be deported; and

(d)    escorted community leave arises prior to a Tribunal determination that the sentence has been concluded and will not trigger detention or deportation, relying on McCafferty v Minister for Immigration & Ethnic Affairs [1995] FCA 1099; 61 FCR 275 at 282 (per Davies J).

36    As a consequence of the above, the primary judge did not accept the appellant’s claim that he will cease being a forensic patient unless the cancellation of his visa is revoked and that he will be deprived of the opportunity to undergo escorted community leave: J[54] (emphasis added). Further, the primary judge did not accept that by operation of s 189 of the Act and s 53 of the Mental Health Act 2007 (NSW), if the Tribunal approved his release as part of a “community treatment order”, the Department would have no choice but to deport him: J[56]–[60].

37    The second ground upon which the appellant sought review before the primary judge, was that the Minister erred in failing to consider two relevant considerations: (a) information about the nature of his forensic mental health status and the likely trajectory of his treatment; and (b) the content of the Monthly Progress Report, and its reference to the AVL contact with his sister.

38    With respect to (a), the failure to consider information about the nature of the appellant’s forensic mental health status and the likely trajectory of his treatment, the appellant contended that the Minister did not take into account that without a visa his treatment and rehabilitation would be paused once he is transferred from the hospital to a Medium Secure Forensic Psychiatry facility. This was because as an unlawful non-citizen he would not be permitted to access the community and complete his rehabilitation. At least according to the appellant, the consequence would be that the Minister did not take into account that “he may be detained for longer, and potentially indefinitely because he could not meet the goals of his mental health treatment”: at J[63].

39    The primary judge concluded that the appellant had failed to establish that he had made any representation to the Minister to the effect that he would not be able to complete his rehabilitation as a result of his visa being cancelled. The primary judge referred to the Minister’s summary of the appellant’s representations to him, at [12] of the Minister’s reasons (see [17] above) and referred to, and relied on, his Honour’s earlier reasons that the appellant had failed to establish that he would not be able to complete his treatment as a forensic patient: J[66], [68]. By reason of the latter, the primary judge concluded that, even if the relevant representation was made, the Minister’s failure could not have been material.

40    As to (b), the failure to consider evidence about ongoing regular contact with family, the primary judge found, at J[71], that the appellant’s representation was to the effect that his removal would result in isolation from his family and friends. There was no specific representation made to the Minister that he should consider the evidence of the AVL contact with the appellant’s sister. As a consequence, the primary judge concluded that:

… It cannot be said that that specific reference formed a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked; Bettencourt at [27]. Nor, for the reasons set out in relation to ground 1(b) could it be said that, had it been mandatory for the Minister to consider that evidence, doing so would have had a material effect on the outcome of the Minister’s reasons.

Consideration and disposition of the grounds of appeal

41    As will be seen, the appellant essentially repeats the grounds for judicial review before the primary judge, on appeal.

42    By ground 1, the appellant contends that the primary judge erred in failing to find that the Minister fell into jurisdictional error “in that he was unreasonable, or made findings without a logically probative basis”, namely :

(1)    the Minister’s finding that there was no evidence that the appellant had any family support in Australia (ground 1(b)); and

(2)    having regard to all of the circumstances of the appellant, that it was unreasonable for the Minister not to revoke the cancellation of the appellant’s visa (ground 1(c)).

43    By ground 2, the appellant contends that the primary judge erred in not finding that the Minister fell into jurisdictional error in that he failed to consider two relevant considerations as follows:

(a)    The Minister ignored key information about the nature of Mr Toki’s forensic mental health status and the likely trajectory of his treatment. The Minister did not take into account that Mr Toki’s rehabilitation and treatment as a Forensic Mental Health Patient without a visa would be paused once he transfers from The Forensic Hospital to a Medium Secure Unit, in that he would not be permitted to have any access to the community although this is a major part of the treatment and progress to rehabilitation in the Medium Secure Unit. The main purpose of Medium Secure Care for Forensic Mental Health Patients is to test a person’s capacity to access the community and begin regaining life skills and attending to daily living tasks. (Attachment K, CB 128) Mr Toki, as an unlawful non-citizen would not be permitted to access the community and would thus not be able to fully complete his rehabilitation. Mr Toki would essentially be paused at this point in his rehabilitation and treatment. Mr Toki may be detained longer than clinically indicated in a medium secure unit without opportunity to meet the goals of his forensic mental health treatment. The Minister did not address or take into account that Mr Toki would be prevented from engaging in comprehensive treatment as a result of his decision not to revoke the decision to cancel his visa.

(b)    The Minister said:

“I note that there is no evidence other than Mr TOKI’s own statements that he has family support in Australia, as no family members have provided submissions for the current consideration. Therefore I am not persuaded that he would be substantially worse off in the Cook Islands than Australia, in this respect. [sic]

This shows that the Minister did not consider the evidence of “Ongoing regular contact with family, including having an AVL with sister and her family” as one instance of “Notable Progress”. (Attachment J, CB 119)

We will refer to these grounds as grounds 2(a) and 2(b) respectively.

Ground 1(b) – the finding regarding the appellant having no family support

44    The appellant contends that the Minister’s conclusion at [16] of his reasons was legally unreasonable given, on his submission, there was “clear evidence of family support”. The contested aspect of the Minister’s reasons is at [16] where the Minister said:

I note that there is no evidence other than Mr TOKI’s own statement that he has family support in Australia, as no family members have provided submissions for the current consideration. Therefore I am not persuaded that he would be substantially worse off in the Cook Islands than Australia, in this respect.

45    The appellant contends that, whilst there was no evidence from other family members, this finding is not “otherwise correct” because the Minister had before him the Monthly Progress Report which included, in the section entitled “Notable Progress”, a notation in these terms: “Ongoing regular contact with family, including having an AVL with sister and her family”.

46    The appellant submits that the primary judge erred in finding (at J[38]) with respect to the Monthly Progress Report that “[t]his does not provide material evidence of family support for Mr Toki”.

47    The appellant submits that the Minister’s finding at [16] was unreasonable and may significantly have affected the weight to be given to factors in favour of revoking the cancellation of his visa and was thus material and constituted jurisdictional error. The appellant submits that the finding was material, because “an error about the family support went beyond an error about some particular event, but it went also, possibly, to the question of the likelihood of the appellant engaging in further criminal or other serious conduct”. The appellant submits that the error had the possibility of infecting the Minister’s reasons in this expanded way by reason of the Minister’s adherence to the form of considerations identified in Direction 79.

48    We reject these submissions for the following reasons.

49    The Minister’s finding at [16] of his reasons must be understood in context. As referred to at [19] above, the Minister’s finding is in the context of his consideration of the extent of the impediments the appellant would face if he were removed. The Minister accepted that the appellant’s removal will leave him “without familial support” (at [15]) but found, absent family statements, that he was not persuaded that the appellant would be substantially worse off: at [16].

50    Care needs to be taken to consider the entirety of the primary judge’s findings at J[38] where his Honour said:

This ground was not included in the original application but the Minister had no difficulty addressing it and it was sufficiently arguable. I grant leave to amend to include it in the application. However, in my view this ground cannot succeed, because upon proper scrutiny the statement made by the Minister is correct. The evidence discloses that there was in fact no submission or representation provided by family members for his consideration. The single statement in the Monthly Progress Report is to record “regular contact” via an AVL link. This does not provide material evidence of family support for Mr Toki. This ground must be dismissed.

51    The primary judge explained the basis for his Honour’s rejection of the appellant’s contention. We agree with the primary judge’s reasons, namely that the ground could not succeed because the evidence did not disclose any submission or representation from the appellant’s family members for consideration by the Minister. As a consequence, the Minister was correct to find that there were no such family statements.

52    The Minister’s reference to “no evidence” appears to be a reference to “no evidence from family members”. A dot point reference in one report does not constitute evidence from family members. Furthermore, the single dot point in one Monthly Progress Report is of limited value and is of a markedly different quality to the kind of corroborative evidence the Minister identified as lacking. The notation is not repeated in any other (or more recent) monthly report of which there were six between November 2019 and June 2020. The source is not identified and it is not clear whether the author of this document independently oversaw such visits or was relying upon hearsay from the appellant or some other source. As the primary judge said at J[38], this one line reference in one report “does not provide material evidence of family support for Mr Toki”.

53    It follows that the primary judge did not err and ground 1(b) must fail.

Ground 1(c)

54    By this ground, the appellant contends that it was unreasonable for the Minister not to revoke the cancellation of the visa, in all the circumstances, as particularised by the appellant and which are set out at [33] above.

55    The appellant contends that, by reason of these circumstances, the “question for the Minister properly required him to consider” the factors set out at [33] above, “all of which pressed for revoking the cancellation of the visa.” Especially important were: (i) the length of time that he had spent in Australia from age 15 to 54 years; and (ii) the number of his immediate and extended family in Australia, given the evidence of the “Notable Progress” in his regular contact with family. Added to these factors, according to the appellant, were the weighty factors of (iii) and (iv) regarding the gravity of his mental illnesses, and (v) his progress to rehabilitation in Australia, with (vii) the need for assistance with future progress, and the lack of that assistance if he were sent to New Zealand or the Cook Islands.

56    At the hearing, the appellant emphasised that the nature of the treatment the appellant had suffered in prison had exacerbated his mental illness which included “a period of two years in segregation without programs and/or the stimulation of interacting with anyone other than prison staff” and partial non-compliance with prescribed medication for six months or so. The latter led to a finding by Nicholson SC DCJ in R v Toki, Martin [2009] NSWDC 186 at [52]:

I am satisfied the punitive approach taken by custodial authorities of depriving him of privileges, avenues of stimulation, pleasure, exacerbated the forces of his mental deterioration. Likewise, the custodial authorities actions in increasing tension by such deprivation of privileges also exacerbated the forces of his mental deterioration.

57    As a consequence, the appellant submits that all of these matters, cumulatively lead to the conclusion that it was unreasonable for the Minister not to revoke the cancellation of the appellant’s visa. In summary the appellant submitted at hearing:

The representations before him, in my submission, put front and centre, amongst other things, the mental illness of the appellant. The issue that the appellant takes is precisely with the submission that the Minister makes, that the Minister’s determination in this case lay within the area of decisional freedom of the Minister exercising the power under the Migration Act.

…

But in my submission, when the Minister had before him a man who had a history of having done some very serious things, some very grave things, and who was still in prison, serving a long term of imprisonment for murder, but he also had before him a man who had a history of serious mental illness, which had been undiagnosed for a time, had been exacerbated by what he had experienced in prison, when – while prison is a punishment, it is not intended to cause further harm or damage to a person – and when this man had been in Australia for 39 out of 54 years of his life. In my submission, that gets to the point where, for good or ill, and in the national interest, as the Migration Act deals with, that in my submission, the appellant had, by the time of the Minister’s decision, become a person who reasonably, in the legal sense, ought to have been dealt with here.

58    For the following reasons, we are not persuaded that this ground is made out.

59    First, the relevant principles are not in doubt. The primary judge referred to BHL19 at [129]-[138] where a Full Court of this Court (White, Wigney and Bromwich JJ) summarised the principles in relation to legal unreasonableness. At [133] their Honours referred to the two contexts in which the concept of legal unreasonableness may be employed, namely where there is:

(1)    a conclusion after the identification of a recognised species of jurisdictional error in the decision-making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration giving rise to jurisdictional error, or

(2)    an “outcome focused” conclusion without any specific jurisdictional error being identified.

60    As to the latter, the Full Court noted at [134] that:

… it is necessary to bear in mind that, within the boundaries of power, there is an area of “decisional freedom” within which a decision maker has a genuinely free discretion. Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness. Such a decision falls within the range of possible lawful outcomes of the exercise of the power. It is only if the outcome falls outside the area of decisional freedom that it can be said to be legally unreasonable.

61    This is particularly apt in the present case given the appellant’s claim that the decision was unreasonable is one which is “outcome focused”.

62    In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 397 ALR 1 at [29]–[35] a Full Court of this Court (Allsop CJ, Besanko and O’Callaghan JJ) addressed the principles relating to illogicality, irrationality and legal unreasonableness. In particular at [32]–[35], their Honours said:

32.     The nature of jurisdictional error and legal unreasonableness was described by Allsop CJ in Stretton at [2]–[13]. See also Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 at [54]–[65].

33.     The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; 357 ALR 408; 163 ALD 1; [2018] HCA 30 at [11], [52], and [135]; Minister for Home Affairs v DUA16 (2020) 385 ALR 212; [2020] HCA 46 at [26]; SZMDS at [130]–[135]; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [60]; and Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 (2021) 395 ALR 57; [2021] FCAFC 195 at [142].

34.     The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZMDS at [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

35.     Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALD 224; [2004] HCA 32 at [38]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; 73 ALD 1; [2003] HCA 30 at [52] and [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

63    Secondly, the Minister did address each of the particularised factors upon which the appellant relies, extracted at [33] above, save for the claimed exacerbation of the appellant’s illness in prison, which did not, in any event form part of the representations made before the Minister. As recognised by the High Court, “[t]he decision-maker is not required to consider claims that are not clearly articulated [in the representations] or which do not clearly arise on the materials before them”: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [25]. Furthermore, the Minister addressed particular (i) at [21] of his reasons, particular (ii) at [14], particular (iii) at [42] and [47], particular (v) at [48]–[49], particular (vi) at [18] and [46], and particular (vii) at [17].

64    Thirdly, the appellant identified no purported error in the primary judge’s reasons, at J[45]–[61], save for his Honour’s conclusion, at J[53], that the appellant disputes the findings that: (i) the appellant will not be removed from immigration detention or deported until he has completed his present custodial sentence; and (ii) escorted community leave will not be a trigger for detention or deportation. The appellant submits that it may be inferred that where there is a deportation order the appellant may not be released.

65    To assist his argument the appellant sought leave pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) to rely on fresh evidence on the appeal, namely a deportation order dated 3 October 2018 made pursuant to s 254 of the Act (s 254 notice), which was not before the Minister or the primary judge. The Minister opposed that application.

66    The Court has power to admit fresh evidence on appeal: see s 27 of the Federal Court Act. The power to admit further evidence is remedial and its primary purpose is to ensure that proceedings do not miscarry. Rule 36.57 of the Federal Court Rules 2011 (Cth) sets out the requirements for an application that the Court receive fresh evidence on appeal. We pause to note that no such formal application was made here. As observed by a Full Court of this Court in BVZ21 v Commonwealth of Australia [2022] FCAFC 122 (Markovic, Thomas and Halley JJ) at [12]:

In exercising the discretion, the Court will normally need to be satisfied that the further evidence, had it been adduced at trial, would very probably have meant that the result would have been different, and further that the party seeking to adduce the evidence was, at trial, unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence: Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [15]–[16] (Griffiths, Mortimer and White JJ).

67    For the reasons outlined below, we refuse the application for the Court to receive the s 254 notice on the appeal.

68    First, there was no evidence about how or when the appellant became aware of the s 254 notice. In that regard we note that it is addressed to the appellant and is dated 3 October 2018.

69    Secondly, and perhaps more critically, we are not satisfied that, had the s 254 notice been before the primary judge, it would very probably have made a difference to the outcome.

70    Section 254 of the Act relevantly provides:

(1)    This section applies if a person is a removee or a deportee and is in the custody of an authority of the Commonwealth, a State or a Territory, otherwise than under this Act.

(2)    The Secretary or Australian Border Force Commissioner may give the person written notice:

(a)    if the person is a deportee:

(i)    stating that a deportation order has been made; and

(ii)    setting out particulars of the deportation order; and

(b)    if the person is a removee—stating that the person is to be removed; and

(c)    in any case—stating that, from the time when the person would otherwise be entitled to be released from the custody referred to in subsection (1) (the custody transfer time), the person will be kept in immigration detention.

…

71    In other words, in practical terms, a notice in the form of the s 254 notice only takes effect when the person becomes entitled to be released from custody.

72    At J[21], the primary judge referred to the sentencing remarks of Nicholson DCJ in R v Toki at [28]–[30] including that:

28.    Before I embark upon the legal concepts of the mental illness defence, I intend to explain to the consequence of a finding, that the accused is not guilty by reason of mental illness. A verdict of not guilty by reason of mental illness would mean that because of the verdict, there is no consequence to the accused arising from the charge other than that he would be oversighted by the Mental Health Review Tribunal. A verdict of not guilty on the grounds of mental illness would normally mean that I would order that he be detained in strict custody in such place and in such manner as to me seems fit until released by due process of law. Due process of law includes not only his continued detention until release but that he would come under the supervision of the Mental Health Review Tribunal. The registrar of this court would notify the Minister for Health and the Mental Health Review Tribunal of every post verdict order made by the trial judge.

29.    …Only if satisfied of the safety of the accused, or that any member of the public would not be seriously endangered by the accused’s release may a recommendation for release be made.

30.    In this accused’s case that could only occur after he had finished his non parole period. If there is such a recommendation then the Minister for Health must notify the Attorney General and at the same time furnish a copy of his notification to the Director of Public Prosecutions. If the Attorney General makes no objection to a recommendation for release within thirty days after being so notified by the Minister for Health then and only then may an order be made for the accused’s release provided that the Minister for Police and emergency services are informed of any date of such release. When release is not recommended the Tribunal’s order continued detention, care and treatment in a place and manner specified by the Tribunal. That is a review as much as I need to do of the functions and potential outcomes available to the Mental Health Review Tribunal.

73    At the time of making his decision, the Minister had before him a letter dated “July 2020” from Dr Jacob Yuide of the Justice Health and Forensic Mental Health Network of the New South Wales Department of Health concerning the appellant (Yuide Letter) which included that:

In the ordinary course of events a forensic patient in Mr Toki’s circumstance will proceed to a rehabilitation ward within the Forensic Hospital and then be referred to a Medium Secure Forensic Psychiatry facility where escorted community leave will occur. A timeframe cannot be placed on this, as the forensic patient order is indefinite.

74    It follows from the above, that the appellant cannot be released from custody until the process described by Nicholson DCJ and referred to in the Yuide Letter is complete. A notice given under s 254 of the Act cannot practically take effect until the process so described is complete and the appellant is released from custody. The primary judge reached the same conclusion at J[53]–[54]. The s 254 notice could not lead to a different result.

75    Putting that to one side, the decision in Falzon recognised the tension between the Act and various State provisions relating to criminal justice but makes clear that criminal detention cannot be “converted” into immigration detention and the Act contains specific provisions to address this problem: at [59]–[60]. The height of the appellant’s submission was the possibility of a “difficulty of day release at all for a person with no visa” given he must be kept in detention under s 189 of the Act, and criminal custody is not the same as immigration detention.

76    Contrary to the appellant’s submission, we can identify no error in the primary judge’s conclusions at J[53]. We do not accept that s 189 has this effect for the reasons elucidated by the primary judge – the same is evident from the legislative scheme and from the reasoning in Falzon. It is not correct that the appellant would cease to be a forensic patient unless the cancellation of his visa is revoked. The appellant will remain a forensic patient until the Tribunal determines that it is no longer necessary. The appellant will not be deprived of the opportunity to undergo escorted community leave, which would be supervised by the Tribunal. The same is apparent from the District Court’s reasons: R v Toki at [28].

77    Further, the appellant’s representation to the Minister in this regard was that:

Even in the community Forensic Patients are managed under Community Treatment Orders with strict restrictions on conduct, medication, location, community participation, travel, socialising, relationships and engagement with mental health support services.

78    As noted by the primary judge, at J[60], the appellant relied upon the fact of him being the subject of an order as a forensic patient. The Minister was not “called upon to consider the circumstance now raised”. Consequently, in any event, it was not a consideration the Minister was required to take into account because no such representation was made.

79    There was no error in the primary judge’s conclusion at J[43] that the Minister’s decision not to revoke the cancellation did not fall outside the bounds of the decisional freedom left to him by the scheme of the Act.

Grounds 2(a) and (b)

80    Ground 2 concerns the question of whether the Minister failed to consider two particular matters. However, the appellant has not explained how each of the alleged “relevant considerations” are truly “relevant”, namely whether as a matter of statutory construction the Minister was required expressly under the Act to take those matters into account or, if not, whether they must be determined by implication from the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39–40 (per Mason J). Neither of the matters set out in grounds 2(a) and (b) are mandatory considerations required under the Act and it was apparent that the appellant did not contend that was so.

81    The High Court has stated that s 501CA(4) “confers a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked”: Plaintiff M1/2021 at [22]. The “requisite level of engagement” required of the decision-maker will vary “according to the length, clarity and degree of relevance of the representations” and does not require the decision-maker to consider claims which were not clearly articulated or clearly arose on the materials before them: Plaintiff M1/2021 at [25]. The limited role of a court reviewing the exercise of an administrative discretion must be constantly borne in mind: Plaintiff M1/2021 at [26].

Ground 2(a)

82    With respect to ground 2(a), the appellant submits that, without a visa, he may not be able to progress, which would ordinarily be intended, from the Forensic Hospital to a Medium Secure Unit, and then later to supervised and ultimately unsupervised release. The appellant contended that the Minister did not consider this important factor given it constitutes a major part of the treatment and progress to rehabilitation in the Medium Secure Unit. Therefore, he claims that he may be detained longer than clinically indicated in a Medium Secure Unit without opportunity to meet the goals of his forensic mental health treatment.

83    We agree with the reasoning of the primary judge at J[66], that the appellant has not established that he made any representation to the Minister to the effect that he would not be able to complete his rehabilitation as a result of his visa being cancelled: relying on Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172; 287 FCR 294 at [27]. As stated by the Full Court in Navoto v Minister for Home Affairs [2019] FCAFC 135 at [88]:

… decision‐makers under s 501CA(4) of the Act are not required to consider a reason in favour of revocation not advanced by the person making representations to the decision‐maker: Sowa v Minister for Home Affairs [2019] FCAFC 111 at [43] per Jagot, Bromwich and Thawley JJ, citing Minister for Immigration & Border Protection v BHA17 [2018] FCAFC 68; 362 ALR 9 at [79(3)] and [80] per Robertson, Moshinsky and Bromwich JJ.

84    The appellant contends that even if this was not an explicit part of the representations, it was squarely raised by the material in the Yuide Letter, the fresh evidence, and the Act. For the following reasons, we do not accept that submission. First, we do not accept that it was raised in the Yuide Letter. That letter refers to the “ordinary course of events [for] a forensic patient” and says nothing about the effect of the cancellation of a visa on that ordinary course. Secondly, we have refused leave to rely on the s 254 notice but, in any event, it does not support the appellant’s contention. Thirdly, for the reasons set out above at [70]–[76], there is nothing in the Act which supports the appellant’s contention as to the purported effect of cancellation on his rehabilitation.

Ground 2(b)

85    Lastly, with respect to ground 2(b), namely that the Minister failed to consider that there was evidence of “ongoing regular contact with family”, we do not understand how this constitutes a “relevant consideration” in the true sense. We repeat our reasons set out above at [44]–[53]. In our view, the Minister was correct in his reasons to state that there was no evidence of “family support”, the Minister was not required to refer to every piece of evidence in his reasons (Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [45]) and the single dot point in one report is of very limited forensic value.

Conclusion

86    For those reasons, we would dismiss the appeal with costs. We will make orders accordingly.

87    Finally, we wish to express our gratitude to Mr Krohn of counsel who appeared pro bono for the appellant in this matter.

Associate:

Dated:    23 September 2022