FEDERAL COURT OF AUSTRALIA

Stretton v Minister for Immigration and Border Protection (No 2)

[2015] FCA 559

THE COURT ORDERS THAT:

1.    The decision of the respondent made on 28 October 2014 to cancel the applicant’s Class BB, Subclass 155 (Five Year Resident Return) visa is quashed.

2.    The respondent is forthwith to release the applicant from immigration detention.

3.    The respondent is to pay the applicant’s costs of and incidental to the proceeding, including reserved costs, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1    Keith Antony Stretton is a convicted paedophile or, to use a more generic description of popular currency, a “sex offender”. The victim was his grand-daughter. She was 8 or 9 years old when the offences were committed.

2    Mr Stretton is also not an Australian citizen. As the Migration Act 1958 (Cth) (the Act) stood at the time, the terms of imprisonment imposed upon Mr Stretton for the offences of which he was convicted were such as to enliven a discretion on the part of the Minister for Immigration and Border Protection (the Minister) to cancel his visa. The cancelation of a visa makes a person an unlawful non-citizen, liable to immigration detention and consequential deportation from Australia.

3    As Dr William Walters of Carleton University, Ottawa reminds in his article, “Deportation, Expulsion, and the International Police of Aliens” (2002) 6 (No 3) Citizenship Studies 265 at 269, the exiling of those who commit particular crimes is hardly unique to our times. In ancient Greece, it was a penalty for homicide. Early Rome gave a citizen under sentence of death a choice between execution of sentence and exile. The very word “deportation” is derived from the Latin, “deportatio”, which the Romans used to mean banishment to some outlying place within the empire. Exile was often also a form of punishment in the late Middle Ages. Such practices of exile were used not just as a form of punishment but also security. Much more latterly, the practice of transportation was long a feature of the British penal system, a feature exhibited in the founding of modern Australia.

4    On 28 October 2014, the then Minister, the Honourable Scott Morrison, MP, decided, personally, to cancel Mr Stretton’s visa. A sequel to the Minister’s decision was that, on 4 November 2014, Mr Stretton was arrested by members of the Australian Federal Police at his family home in Queensland and taken to the immigration detention facility at Villawood, Sydney. There he remains.

5    Paedophilia and its perpetrators attract repugnance in our society. Notwithstanding this repugnance, it is also a feature of our society that Mr Stretton is not thereby rendered devoid of rights. Two of the rights given to Mr Stretton are:

(a)    a right to the lawful exercise of the Minister’s discretion to cancel his visa, which materially means that the exercise of that discretion must not be attended with jurisdictional error; for example it must neither be unreasonable nor made in accordance with a rule or policy, without regard to the merits of his individual case; and

(b)    a right, entrenched in s 75(v) of The Constitution, to challenge, on the basis of jurisdictional error, the lawfulness of the Minister’s decision in the original jurisdiction of the High Court by a writ of mandamus or prohibition or an injunction or, by virtue of s 476A(1)(c) of the Act, to seek the like relief in the original jurisdiction of this Court.

6    By instituting a proceeding in this Court, Mr Stretton has availed himself of one of those rights of challenge. In invoking the judicial power of the Commonwealth, Mr Stretton has invoked a power the exercise of which, under our society’s constitutional arrangements, is independent of the Executive of which the Minister was a member. That judicial power must be exercised “without fear or favour, affection or ill-will” (s 11 and Schedule, Federal Court of Australia Act 1976 (Cth), which enshrines for judges of this Court a form of judicial oath long taken in the United Kingdom and throughout the common law world, reflecting the essence of judicial independence).

7    A case like the present serves as a reminder that there is nothing trite in reciting these features of Commonwealth judicial power. Aptly for present purposes, the Honourable John Toohey AC, after he had retired from office as a judge of the High Court, described those features in this way (Toohey JL, “‘Without Fear or Favour, Affection or Ill-Will’: The Role of Courts in the Community” (1999) 28 University of Western Australian Law Review 1 at 9-10):

Of course judges must understand what people in the wider community are thinking and they must make some assessment of community values. That is not always easy, particularly if a section of the media runs a strong line on some issue, for instance sentencing of offenders. But the courts are not there to respond to popular demand. Nor are they there to bow to the will of the government of the day. This is not a form of arrogance; it is a necessary consequence of the existence of a strong and independent judiciary as the third arm of government.

Society looks to the courts to protect minorities and individuals against what a former Chief Justice of Australia [Sir Gerard Brennan] called in an address a year or so ago ‘the overreaching of their legal interests by the political branches of government’.

[Footnote reference omitted; parenthetical explanation inserted]

8    As found in the further amended originating application, Mr Stretton’s grounds of review are prolix. They are (omitting the name of the victim):

1.    The Respondent’s decision was infected with jurisdictional error.

Particulars

(a)    The Applicant claimed/contended that the Respondent should not cancel his visa because of the adverse impact and effect that such a cancellation would have on his youngest child, [the victim]. The Applicant put significant evidence before the Respondent which supported such a claim/contention and which demonstrated that there would be a significant adverse impact and effect on [the victim] in the event that the Applicant’s visa was cancelled.

(b)    Notwithstanding the matters outlined in particular (a) above, the Respondent:

(i)    failed to consider, engage with, address or respond to the applicant’s abovementioned claim/contention or the abovementioned evidence; and

(ii)    failed to take into account a relevant consideration.

(c)    The abovementioned failures resulted in the Respondent falling into jurisdictional error – including by denying the applicant natural justice.

2.    The Respondent’s decision was infected with jurisdictional error.

Particulars

(a)    In relation to the Applicant’s sentence the sentencing judge (Judge McGinness DCJ) said (with respect to the impact of the Applicant’s conduct on the victim and the victim’s family) “Although no victim impact statement has been provided, no doubt there have been adverse impacts upon the [victim] and her family”.

(b)    Notwithstanding the matters outlined in particular (a) above, the Respondent found or concluded that the sentencing judge “[noted] the adverse impacts the offences have had upon the child and her family” [emphasis added in original].

(c)    The findings/conclusions outlined in particular (b) above arose due to the provision of incorrect information contained in the departmental issues paper that was provided to the Respondent.

(d)    In the premises of the abovementioned matters the Respondent fell into jurisdictional error by:

(i)    reaching a conclusion, making a finding and/or having regard to matters for which there was no evidence to support;

(ii)    misunderstanding the evidence before him;

(iii)    not properly considering or engaging with the evidence before him;

(iv)    taking into account an irrelevant consideration or, alternatively, failing to take into account a relevant consideration;

(v)    making a decision which was unreasonable, illogical or irrational; and

(vi)    making a decision based on incorrect information provided in the departmental issues paper.

3.    The Respondent’s decision was infected with jurisdictional error by reason of:

(a)    the decision being manifestly unreasonable, illogical or irrational; or

(b)    alternatively, the Respondent:

(i)    inflexibly applying a policy or fettering the exercise of his discretion; and/or

(ii)    failing to disclose to the Applicant, prior to the making of his decision, the substance or effect of the abovementioned policy and provide the Applicant with an opportunity to deal with it.

4.    Jurisdictional error can be inferred from the result of the decision or, further or alternatively, because the Respondent failed to discharge his statutory function according to law.

Particulars

(a)    The result of the Respondent’s decision bespeaks error and, in the premises, jurisdictional error (and the failure of the Respondent to discharge his statutory function) can be inferred.

9    Before considering the merits of these grounds, it is first necessary to summarise how, at the time when the Minister made his decision, the Act operated so as to confer on him the particular power utilised to cancel Mr Stretton’s visa.

10    Mr Stretton was born in the United Kingdom. As at 28 October 2014, he had right of residence in Australia because he was the holder of a Class BB, Subclass 155 (Five Year Resident Return) visa. This visa allowed him to remain in Australia indefinitely.

11    On 24 June 2013, in the Queensland District Court (Her Honour Judge McGinness), Mr Stretton pleaded guilty to three counts of indecently treating in 2009 a child under the age of 12 years who was his lineal descendent and who was then under his care. On each count, Mr Stretton was convicted and sentenced to two years imprisonment, those sentences to be served concurrently. The District Court further ordered that the sentences be suspended after six months. The operational period of the suspension was two years.

12    The source of the power exercised by the Minister in Mr Stretton’s case was s 501(2) of the Act. At the time, it provided:

(2)    The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.

13    Subsection 501(6) defined the circumstances in which a person would not pass the “character test”. One of these, found in s 501(6)(a), was that “the person has a substantial criminal record (as defined by subsection (7))”. One basis, found in s 501(7)(c), upon which, by definition, a person had a “substantial criminal record” was that “the person has been sentenced to a term of imprisonment of 12 months or more”.

14    Even though his sentence was suspended after six months, the expression “term of imprisonment” has been construed to refer to the head sentence imposed on an offender, not to the time intended at the time of sentencing actually to be served in prison: Te v Minister for Immigration and Ethnic Affairs (1999) 88 FCR 264 (Te). Because Mr Stretton was sentenced to concurrent periods of imprisonment two years, he was thus, by definition, a person who had a “substantial criminal record”.

15    Against this statutory background and, unsurprisingly in light of Te, it was not controversial that the Minister could reasonably suspect, and did, that Mr Stretton had a “substantial criminal record”. Further and for like reasons, Mr Stretton’s sentence was such that he could not, and he did not seek to, satisfy the Minister that he passed the “character test”. Thus, it is not controversial that the two preconditions for the exercise of the discretion conferred on the Minister by s 501(2) of the Act were met.

16    Other than specifying two preconditions and conferring a discretion on the Minister, s 501(2) is silent. How that silence is to be construed in relation to the exercise of the discretion has been addressed by the High Court. In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at [126] – [128] (Nystrom), Heydon and Crennan JJ, with whom Gleeson CJ, at [1], agreed, stated:

126.    The discretion to cancel a visa conferred upon the Minister under s 501(2) of the Act is unfettered in its terms. In Sean Investments Pty Ltd v MacKellar Deane J said:

“… where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards.”

127.    In Minister for Immigration and Multicultural and Indigenous Affairs v Huynh the majority of the Full Federal Court held that, given the breadth of s 501, it is not possible to imply into the Act “some obligation on the Minister’s part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed”.

128.    Parliament has left it to the Minister to decide the matters which are relevant to whether a person who fails the character test should be permitted to remain in Australia. Considerations relevant to the exercise of the power depend on the nature, scope and purpose of the power, understood in its context in the Act.

[Footnote references omitted]

17    In submissions, the Minister placed some emphasis upon the reference, at [127] in the passage quoted, to the judgement of the majority in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 (Huynh) and to the statements made in that part of [128] which I have quoted.

18    In light of the analysis of Nystrom found in NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44 (NBNB), some care must be taken in respect of both the passages which I have quoted from Nystrom and the judgement of the majority in Huynh. The analysis in NBNB is to be found in the judgement of Buchanan J, with whom Allsop CJ and Katzmann JJ, at [7], agreed. In NBNB, the Minister had submitted that he was not obliged to take into account the particular circumstances concerning the commission of a criminal offence which caused a visa applicant not to pass the character test. In respect of this submission, Buchanan J stated, at [114] – [115] and [118] – [119]:

114.    In particular, the Minister relied upon the following statements in the majority judgment in Huynh (at [74]):

… If the Minister were able, consistent with the object of the Act, to consider a matter as broad as the national interest, in determining whether a person ought to be permitted to remain in Australia, it does not seem possible to imply some obligation on the Minister’s part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed. By way of illustration, the Minister may consider that the national interest requires that the commission of a particular type of offence will inevitably result in the cancellation of a visa, where there has been a sentence to imprisonment for the requisite term. To construe the section as requiring the Minister to consider factors such as the level of involvement of the visa holder in the offences would cut across that broad discretion. …

115.    Those observations must be considered in the context that the specific question being addressed was whether a Minister was obliged to take into account (and be informed about) sentencing remarks made by an appellate court as well as a sentencing judge (see Huynh at [70]). Put more broadly, the question was whether a Minister should consider “the circumstances surrounding the crimes concerned and the imposition of sentences for those crimes” (see Huynh also at [70]).

…

118.    To the extent that Huynh is relied upon to support a more general proposition (as it was in the present cases) that the Minister is under no obligation to pay any regard to, or consider, the consequences for a particular visa applicant of refusal of a visa, the submission faces further difficulties. It appears to me, with respect, not to represent the approach stated by the High Court.

119.    The Minister, in this connection, relied on passages in Nystrom to suggest that what was said in Huynh had been adopted by the High Court. The issue being addressed in Nystrom, in the passage relied on by the Minister in the judgment of Heydon and Crennan JJ (with whom Gleeson CJ agreed) at [127]-[128], was whether the Minister, when cancelling a visa, was obliged to separately “identify and consider” (Nystrom at [121]-[122]) the “nature” of any other visa (Nystrom at [121], [122], [123], [129]) which might also be cancelled automatically by operation of the Act.

19    Having regard to the passages quoted from Nystrom and NBNB, I consider that I am bound to hold that, while the discretion conferred by s 501(2) is “unfettered in its terms”, the “nature, scope and purpose of the power, understood in its context in the Act” are such that the Minister is obliged to pay regard to, or consider, the consequences for Mr Stretton of the cancellation of his visa.

20    Yet more recently, in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54 (Moana), Rangiah J, at [49], with whom North J agreed, Jessup J dissenting, held that risk to the Australian community posed by the continued presence of the visa holder in Australia had to be considered. A like conclusion had earlier been reached by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 (Tanielu), although the reasons of the majority in Moana differed somewhat from those of Her Honour. In Moana, at [56], Rangiah J discerned in s 501(6) a “common thread” running through each of the criteria in that subsection, which was that each involved “a risk of harm of some kind to the Australian community posed by a person entering or remaining in Australia”. His Honour then reasoned, at [57]:

As Parliament required the Minister to evaluate the danger, or risk, to the Australian community at the threshold stage it seems unlikely that Parliament intended that the Minister should then be at liberty to ignore that risk when exercising the discretion. What seems more likely is that Parliament intended that, having taken that risk into consideration at the threshold stage, the Minister must also consider it in exercising the discretion.

21    I am not at liberty to depart from the conclusion reached by the majority in Moana.

22    Some further detail concerning Mr Stretton should now be given. I have mentioned that he is not an Australian citizen. He was born in the United Kingdom on 29 December 1954. He is a British citizen and subject.

23    Mr Stretton migrated to Australia with his father and his older brother. Mr Stretton’s mother had died in the United Kingdom of cancer when he was about five years old. It was his wife’s death, the absence of anyone else to help care for his children in the United Kingdom and the presence already in Australia of his own brother and mother that prompted Mr Stretton’s father’s decision to migrate to Australia with his infant sons. The family arrived in Australia, at Sydney, on 1 June 1961. Mr Stretton was therefore six years old on arrival. Australia has been his place of residence ever since.

24    Mr Stretton’s father later made application under the Australian Citizenship Act 1948 (Cth) and became an Australian citizen. Mr Stretton did not. His father is still alive, now in his eighties and in indifferent health, and remains an Australian resident.

25    There was once a time, and it ceased quite recently, when a person such as Mr Stretton would not have been regarded as an alien but rather a subject of the Queen of Australia: Re Patterson; ex parte Taylor (2001) 207 CLR 391 (Re Patterson). Later authority in the High Court, Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28, holds that a person such as Mr Stretton, born outside Australia to non-Australian parents, even if a British subject, is, if not naturalised, an alien. Though Re Patterson featured in the comprehensive submission which came to be made to the Minister on Mr Stretton’s behalf, it was no part of his judicial review application, even in a formal way, that he was not, in any event, amenable to detention and deportation because he was not in law an alien but had been absorbed into the Australian community. It will be necessary to return to Re Patterson later in these reasons for judgement, for another purpose.

26    It is now necessary to turn to the Minister’s reasons. It is by reference to these that the question of whether the jurisdictional errors alleged exist must be resolved. Those reasons were, with respect, hardly cursory. It would do less than justice to the Minister not to set them out at some length:

DISCRETION

7.    Having found that Mr Stretton does not pass the character test and having assessed the information set out in the Issues Paper and attachments, I considered whether to exercise my discretion to cancel Mr Stretton’s visa. I was mindful of the Government’s commitment to using section 501 of the Act to protect the Australian community from harm that may result from criminal activity or other serious conduct by non-citizens.

Criminal Conduct

8.    Mr Stretton first appeared in the Children’s Court in June 1970, aged 15, and was committed to an institution for stealing. In February 1972 he was fined and released on probation until 18 years by the Children’s Court for stealing a motor vehicle and for three minor driving related offences. As an adult, he received fines for being under the influence in February 1973, and for two minor drug related offences in May 1974. He had no further convictions until the sexual offending in 2009, for which he was convicted in June 2013.

9.    Regarding the sexual offending, the sentencing judge observed that the victim, who was Mr Stretton’s granddaughter and who was under his care on each occasion, was aged eight to nine years when the offences occurred in 2009, that the offences involved Mr Stretton “touching and rubbing her vagina underneath her underpants, directly on her skin”, and that the child “spoke of feeling sore” when Mr Stretton did that to her.

10.    Having had regard to the serious nature of the offences, amongst other factors, and noting the adverse impacts the offences have had upon the child and her family, the judge sentenced Mr Stretton to two years imprisonment on each of the three counts. Her Honour ordered that the sentences be served concurrently and be suspended after six months of those terms of imprisonment had been served.

11.    I adopt the court’s observations and view his sexual offending as very serious. I also note Mr Stretton’s representative “…acknowledged that our client’s conduct was serious in nature” and that “[o]ur client, himself, accepts that this is the case”.

12.    Moreover, I view that his offending against his grandchild, a vulnerable member of the community, heightens the seriousness of his conduct.

13.    I find that the convictions and the sentences of two years imprisonment reflect the seriousness of his offending, notwithstanding the fact that the judge imposed a relatively short non-parole period of six months.

Mitigating factors and risk of re-offending

14.    While the court acknowledged that Mr Stretton had a “very difficult childhood”, it did not detail the casual factors in his offending.

15.    Mr Stretton’s wife explains that he “… had a very tragic start to life as he lost his mother to cancer at the age of four and ended up living in very abusive household, both physically and mentally, which has affected him greatly throughout his life”.

16.    Mr Streeton [sic] explains further that after his mother died, his father migrated to Australia. He lived with his paternal grandmother and uncle while his father worked and recalls “physical and mental abuse”. Later at the age of 12, his father re-married and further difficulties ensued until the age of 15 when he left home and went to live in Kings Cross. He remembers then being in trouble with the law and being detained at Daruk Boys Training School for 16 months.

17.    The psychologist notes that one unfortunate consequence of Mr Stretton’s past history “has been his developing unwise alcohol use habits”, and “that was a major contributor to his impulsive behaviour leading to this court case”. He emphasises that “this does not excuse his behaviour but it does explain it”.

18.    I concur with the expert psychologist’s assessment that alcohol consumption contributed to Mr Stretton’s offending, but that it did not excuse his criminal conduct.

19.    The sentencing judge observed that Mr Stretton’s “family speak of your many other good qualities, your own very difficult childhood, and your family’s ongoing support” and noted “the letter that you intended to read out to the court, which reflects the remorse and regret that you express for your behaviour, and your intention to try and rectify things as best you can in the future”.

20.    In his own submissions Mr Stretton has again expressed remorse. He states “that I truly regret and take absolute responsibility for my actions”, that as well as his shame and the negative consequences suffered by all involved, he deeply understands “the damage that can result from such ill considered and thoughtless acts”, that he “will never, ever, behave in such a way again as long as I live” and has “made this vow to myself, to my family and to God on my own word, and upon the soul of my mother”. He confirms that he “saw a psychologist before I was incarcerated” and that he intends “to continue to seek help and treatment when I am released from prison”.

21.    Mr Stretton advised that upon release from prison he intends “to start a relief business for owners of shoe repair/key cutting shops”, which will keep him in full time employment. He also intends to help his “wife by promoting her business and helping her career as much as I can”.

22.    In considering the risk that Mr Stretton’s conduct may be repeated, I have also taken into account the psychologist’s assessment that “his risk of further sexual misconduct” was “low”. In addition, I have taken into consideration the supporting character references from his family, as well as the submission advanced by his legal representative that “there is substantial evidence that there is a low risk of our client re-offending”.

23.    Nevertheless, I find that even if Mr Stretton does pose a low risk of re-offending, serious harm could result to a member of the Australian community if he were to do so.

Ties to Australia

24.    Mr Stretton was a young child aged six when he commenced residence in Australia in 1961. He has resided in Australia for 52 years and has been absent from the country for a total period of about a fortnight. He first appeared in court, aged 15, on 2 June 1970, about nine years after his first arrival in Australia. However, he had no further convictions form May 1974 until the sex offending in 2009, for which he was convicted in June 2013. At that time he was aged about 54 and had lived in Australia for some 48 years.

25.    Mr Stretton’s British citizen wife is a long term permanent resident in Australia. His four Australian citizen children and four grandchildren, as well as his Australia citizen father, two brothers and 22 other relatives all live in Australia.

26.    Mr Stretton was gainfully employed and self-employed from 1975 to 2013, and he was actively involved in sporting and community activities from 1983 to 2003. He was involved in sporting clubs, in particular soccer, he was a referee at indoor cricket matches from 1987 until 2003 and was a director in [a location] Shopping Centre traders committee.

27.    Mr Stretton’s representative submits on his behalf “our client has lengthy and strong ties to Australia” and that since he “arrived in Australia as a young boy of six years of age he has absorbed himself into the Australian community and adopted the Australian way of life”.

28.    Mr Stretton attended primary and second schools in Australia and attended church and was an altar boy. He “started an extensive family in Australia … and raised his children in Australia”, has “been consistently employed”, “run several businesses”, “owned several properties”, “made countless Australian friends”, “only left Australia on two occasions (for a short holiday cruise and overseas trip)”, “voted in every local, state and federal election” since 1977, “was in the Australian Army Reserve” and “has always been significantly involved in the Australian community”.

29.    I find that Mr Stretton has long and deep ties to Australia. He spent all of his formative years in Australia arriving as a young child of six, has lived here for 52 years, and was aged about 54 and had lived in Australia for some 48 years when he committed the sex offences. He has been participating in, and contributing to, the community through a lengthy period of employment, sporting and community activities, and he has close familial ties to Australian citizens and permanent residents in Australia.

Bests interests of minor children

30.    Mr Stretton has not claimed he has a relationship with any children under 18 years of age in Australia. However, I acknowledge that he does have four Australian citizen grandchildren who are under 18 years of age and who reside in Australia.

31.    Mr Stretton reported that his eldest daughter, [name], “had four children, two from a previous marriage and two from her current marriage”, that her child from the first marriage, [name of victim], was the one he had touched sexually, and that his relationship with [his eldest daughter] was “now non-existent”.

32.    All four of Mr Stretton’s grandchildren are [his eldest daughter’s] children. [Name of victim] is the victim of Mr Stretton’s offending. She was aged eight to nine at the time of the offending in 2009. She would now be around 13-14 years old. Mr Stretton has no contact with [name of victim] at the present time. There is no information that the current situation will change as Mr Stretton has no contact with his daughter. In light of the circumstances I find that it is in [the victim’s] best interests that his visa is cancelled.

33.    Mr Stretton does not currently have any contact with the other three grandchildren, and there is no information that this situation will change. It is possible that they may enjoy a future relationship with their grandfather which is characterised by some personal contact, nothing that daily care and guidance is discharged from their parents. Thus, I find that it is not in the three grandchildren’s best interests to cancel Mr Stretton’s visa, but in light of the circumstances, the harm to their best interests will be considerably reduced.

Non-refoulement obligations

34.    Mr Stretton has not made any claims which require assessment in relation to Australia’s international non-refoulement obligations, nor are any claims clear from the facts of the case.

Other considerations

35.    Mr Stretton’s representative has submitted that the cancellation of Mr Stretton’s visa “would have a very detrimental effect on our client and his family …”.

36.    Mr Stretton advises that his father lives in New South Wales with his 40-year-old half-brother. He writes: “Dad is 81 now and is in poor health. I do love my father and dread the thought of not being close by him should his health take a serious turn for the worse”.

37.    His wife writes that she has five brothers and one sister and other close family in Australia, and that after the 1974 Queensland floods she had a break down and ended up in hospital for two weeks where Mr Stretton cared for her. She explains that the cancellation of her husband’s visa would have a “dramatic” effect on her, that they “have been together for 38 years”, that without her husband “I fear for my personal safety when at home and worried what will happen without him here”. She says she “would miss Keith terribly if he were to be removed to the United Kingdom” and does not know if she “would be able to remain in Australia if Keith’s visa was cancelled”. She says further that this causes her “great anxiety and sadness as I would be forced to make a decision whether to support my husband (by moving to the United Kingdom) or remain in Australia with my children”, and that she is “extremely close to all of my children and cannot stand the thought of being separated from them”.

38.    Mr Stretton’s son, [name – “Son 1”], writes that the situation causes him “great pain and sadness” and that his family is torn apart. He states he has suffered from “anxiety and depression” since this occurred and he is also worried “at how often” he will see his father in the future “given the great distance and costs”. In his current circumstances, he worries that he would not see his father for “several years” and would be “devastated if this were the case”.

39.    [Name – Son 1’s] de facto partner states she would suffer emotional hardship if Mr Stretton’s visa was cancelled. She writes: “I have a close relationship with Keith and would miss him very much should he be unable to remain in Australia”.

40.    Mr Stretton’s son, [Name – “Son 2”], observes that he would not see his father “regularly” and this thought causes him “much pain”. He continues: “I would suffer significant financial hardship in maintaining a relationship with him. This is due to the significant costs and distance in travelling between our respective countries”.

41.    The de facto partner and fiancée of [Name – Son 2] states that they are “planning on getting married in the next 12 to 18 months” and wish Mr Stretton to participate. She writes she will “miss Keith deeply” and will be herself “dramatically affected for the worse if Keith’s visa was to be cancelled”.

42.    I find that Mr Stretton’s family will suffer substantial hardship and that the strong relationships Mr Stretton has formed in Australia will be fragmented as a result of his removal from Australia.

43.    I acknowledge that Mr Stretton was gainfully employed and self-employed form 1975 to 2013, and he was actively involved in sporting and community activities from 1983 to 2003. I note that he was involved in sporting clubs, in particular soccer, he was a referee at indoor cricket matches from 1987 until 2003 and was a director in the [Place] Shopping Centre traders committee.

44.    I also acknowledge that Mr Stretton intends “to start a relief business for owners of shoe repair/key cutting shops”, which will keep him in full time employment.

45.    I find that Mr Stretton’s removal from Australia will have an impact on Australian business interests.

46.    Mr Stretton is 59 years of ages and has no relatives in the United Kingdom. He is on prescription medication for high blood pressure, anxiety and depression. His psychologist cautions that a psychological testing score like Mr Stretton’s “should be considered a significant warning sign of the potential for suicide”.

47.    Mr Stretton’s representative submits that Mr Stretton and his wife are approaching retirement and will need to save hard to be able to retire within a reasonable time, that “if they are forced to relocate to the UK it will be difficult for them to find employment”, that Mrs Stretton’s “skills in real estate would not necessarily be immediately transferrable in the UK”, that “at their current ages (59 and 58) it will be difficult to obtain any employment”, that it “will be extremely difficult for our client and his wife to establish themselves in the UK – a country which is, effectively, foreign to them …”.

48.    Further, the representative submits that “economically our client and his wife may not be able to survive or build a life for retirement if they move to the UK”, that “the impact of being deported on our client would be devastating” as he “will have to be apart from his children and, possibly, his wife for the remainder of his life”, and that “the difficulty he would likely have in surviving a country which is foreign to him is concerning”.

49.    I find that the lifestyle and society in the United Kingdom including the English language is familiar to Mr Stretton. While the standards of health, social and other services in the United Kingdom may be comparable to those in Australia, I find Mr Stretton may face impediments on return, given a lack of family support in his home country and his personal circumstances as outlined above, particularly his absence from the country for 52 years, leaving as a young child of six.

CONCLUSION

50.    I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act 1958, and (2) all other evidence available to me, including evidence provided by, or on behalf of Mr Stretton.

51.    In reaching my decision I concluded that Mr Stretton, a non-citizen, is expected to forfeit the privilege of being able to remain in Australia given the serious nature of his criminal offending. I find that Mr Stretton’s crime against his minor granddaughter, a vulnerable member of the community, is contrary to values held by Australian society.

52.    I also considered the countervailing considerations in Mr Stretton’s case including his long and deep ties to Australia, especially to his immediate family members who are either Australian citizens or long term permanent residents of Australia. I gave weight to the consideration that higher tolerance should be accorded to him given that Mr Stretton spent all of his formative years in Australia arriving as a young child of six, has lived here for 52 years, and was aged about 54 and had lived in Australia for some 48 years when he committed the sex offences.

53.    I also gave weight to the substantial hardship his family will suffer, to the impediments he will face on return to the United Kingdom, and to the potential that the strong family relationships he has formed in Australia will be fragmented as a result of his removal from Australia, as well as to the positive contributions he has made to the community through a lengthy period of employment, sporting and community activities.

54.    However, in making my decision, I have taken the view that despite the strong countervailing considerations articulated above, they are not sufficient to justify not to cancel Mr Stretton’s visa, since even a low risk of re-offending could result in serious harm to a member of the Australian community.

55.    Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Mr Stretton’s Class BB, Subclass 155 (Five Year Resident Return) visa under subsection 501(2).

27    Having regard to the authorities referred to above in relation to the meaning and effect of s 501(2) and to the Minister’s reasons, one asserted jurisdictional error may be dealt with in short order.

28    It was submitted that the Minister had erred by failing to have regard to a mandatory relevant consideration namely, the effect of Mr Stretton’s removal from Australia on his youngest child, a daughter. This was not though a “relevant consideration” in the sense mentioned, and the pertinent authority referred to, in Nystrom at [126]; see also to like effect, Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J and Romano v Minister for Immigration and Border Protection [2011] FCA 1351 at [23] – [24] per Edmonds J.

29    For Mr Stretton, a contrary conclusion was said to be dictated by Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 (Dranichnikov). That is not so. The jurisdictional error identified in Dranichnikov was a failure on the part of an administrative tribunal to deal with an integer of a claim for a Protection Visa. The claim for that visa was, axiomatically, a consideration expressly made relevant by the Act. Here, the impact on his youngest child could not be so characterised.

30    In circumstances where the impact on the youngest child was not a mandatory consideration to take into account, which matters the Minister regarded as relevant and the comparative importance to be accorded to matters so regarded were matters for the Minister. The Minister certainly could have made express reference to her, but he was not obliged to.

31    This same point can be illustrated in another way on the facts before the Minister. The Minister could, for example, permissibly have made greater reference and given greater weight in his reasons to Mr Stretton’s service in the Royal Australian Corps of Signals in the Army Reserve in the late 1970’s (paragraph 53 of Mr Stretton’s statutory declaration appended to his solicitor’s submission to the Minister), rather than a passing reference, at paragraph 28 of his reasons. Some might have regarded voluntary enlistment in the Australian Army as a very singular manifestation of Mr Stretton’s commitment to Australia, warranting this greater reference and weight. But the Minister was not by the Act obliged either expressly or by necessary implication to do this. To find jurisdictional error in such a failure is to tread down the forbidden path of merits review. That is something which a court exercising this jurisdiction must not do: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 38 per Brennan J.

32    This aside, the reasons given by a Minister of State for a decision must never be read critically with an eye for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Wu Shan Liang).

33    It is true that the Minister does not expressly mention the youngest child in his reasons but does mention her siblings. In the submission made to the Minister on Mr Stretton’s behalf, his youngest child was grouped with Mr Stretton’s wife, family and others under the heading “Consideration 3”. Her particular circumstances were there highlighted but this was, in turn, taken up in the “Issues Paper” presented to the Minister by his department for the purpose of his making his decision. Reading the Minister’s reasons in context and as Wu Shan Liang dictates I must, I cannot read the Minister’s reference to Mr Stretton’s family, at paragraph 42 of his reasons, other than as an all embracing reference, inclusive, materially, of the hardship that Mr Stretton’s family, including his youngest child, would suffer.

34    It was also put that jurisdictional error was to be found in a statement in the Issues Paper (at paragraph 21) that the offences in respect of which Mr Stretton was convicted and sentenced in 2013 had had “adverse impacts on the child and her family”. That statement was not expressly taken up by the Minister in his reasons but neither was that impact required by the Act expressly to be addressed by him. What her Honour Judge McGinness stated in sentencing Mr Stretton was, “Although no victim impact statement has been provided, no doubt there have been adverse impacts upon the child and her family.” The transcript of the sentence, which was before the Minister as an annexure to the Issues Paper, discloses that there was no gainsaying of this judicially assumed or inferred fact in sentencing either by counsel for Mr Stretton or by the Crown Prosecutor. Neither was there any such gainsaying in the submission to the Minister by Mr Stretton’s solicitors nor, for that matter, in Mr Stretton’s statutory declaration annexed to the submission and then to the Issues Paper. Against this background, the author of the Issues Paper and, in considering that paper and its annexures as the Minister stated in his reasons that he did, the Minister, were entitled in any event to proceed on the same basis as the sentencing judge assumed or inferred. For these reasons, and however put, there is no merit in this particular ground of asserted jurisdictional error.

35    It was also put that Mr Stretton had been denied natural justice. Bias, actual or apprehended, was not alleged but rather a denial of an opportunity to be heard. There is no substance in this ground.

36    It is a given that the rules of natural justice attend the exercise by the Minister of this particular discretionary power: cf, by virtue of s 501(5), that found in s 501(3) of the Act. Mr Stretton was given advance notice by the Minister’s department, prior to the lodgement of the submission made on his behalf that, “If the Minister decides your case personally, he is not required to give consideration to the matters discussed in the Direction, though he may choose to do so.”: see the department’s letter of 16 October 2013, which annexed Ministerial Direction No 55 – Visa Refusal and cancellation under s 501 (“the Direction”). Mr Stretton’s submission engaged with the matters identified in the Direction and it was these, in turn, which were addressed by the Minister, as his reasons disclose.

37    At the time when the department gave notice to Mr Stretton of the prospect that his visa might be cancelled, and when the responsive submission was made on his behalf, neither Tanielu nor Moana had yet been decided. Thus, neither the department nor Mr Stretton could then have known that evaluation of risk was an issue that the Minister was obliged expressly to address when considering how to exercise his discretion.

38    In the Direction, under the heading, “Principles”, the following appears:

•    at paragraph 6.3(2):

A non-citizen who has committed a serious crime, including of a violent or serious nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

•    At paragraph 6.3(3):

In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

•    At paragraph 6.3(4):

Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

39    The submission made on Mr Stretton’s behalf expressly addressed the subjects covered in these excerpted paragraphs from the Direction; so, too, did the Minister in his reasons (even though he did not expressly refer to the Direction). In other words, Mr Stretton apprehended that the opportunity to be heard being afforded to him entailed an opportunity to make submissions on the subjects of protection of the Australian community and, with that, risk of reoffending. He took up this opportunity. In contrast with his delegates (as to whom, see s 496(1A) and s 499(1) of the Act), the Minister was not obliged to comply with the Direction. Nonetheless, the Minister considered these same subjects when evaluating the submission. In these circumstances, even though Tanielu and Moana instruct that Mr Stretton ought to have been informed in advance that the Minister was obliged to consider the subject of risk to the Australian community and there was a failure so to inform him, there was no practical injustice flowing from that failure.

40    The more difficult issues in this case are whether the exercise of the Minister’s discretion was unreasonable and whether, on analysis, the discretion was exercised in accordance with a rule or policy, without regard to the merits of Mr Stretton’s individual case.

41    Paragraph 54 of the Minister’s reasons discloses that, although he adverted to Mr Stretton’s particular personal and family circumstances into account (as “countervailing considerations”) he concluded that, “even a low risk of re-offending could result in serious harm to a member of the Australian community”. The latter was said to be the rule or policy applied by the Minister. Put another way, Mr Stretton’s submission was that, effectively, the Minister had approached the exercise of his discretion on the basis that, unless he was satisfied that there was no risk, the visa should be cancelled, thereby choosing not to make an evaluation of risk against countervailing factors.

42    The Minister’s approach, evidenced in paragraph 54 of his reasons, may well have been inspired by a suggestion put to him by his department in the Issues Paper (paragraph 39) that he “may wish to be mindful” of an observation made by Matthews J, in her then capacity as President of the Administrative Appeals Tribunal, in Re Lam and Minister for Immigration and Multicultural Affairs (1999) 28 AAR 431 at 442 (Lam):

Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending.

By quoting this sentence in isolation, the department may well, with respect, have done the Minister a disservice. Put in context, what her Honour stated was this:

Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending. However in the applicant's case, for the reasons I have given, I consider that the risk of recidivism is considerably lower than one would expect of a person with his record of behaviour. Overall, I consider that the risk of the applicant committing further offences is a low one.

43    This paragraph in the reasons of Matthews J in Lam was the culmination of a comprehensive evaluation by her Honour of the nature of the offending conduct (a serious drug offence) and of Mr Lam’s character and personality, including whether he was truly remorseful and contrite. To quote the first sentence of that paragraph in isolation was to give her Honour’s observation a prominence and meaning that, as the paragraph in which it appears discloses, Matthews J did not intend. It was also to divert attention from the fact that, notwithstanding the observation which she made in that first sentence, Matthews J, self-evidently, had undertaken an evaluation in which she had balanced risk against countervailing factors.

44    Be this as it may, another basis upon which, in the course of oral submissions, Mr Stretton sought to bolster his claim that the Minister had made his decision in accordance with a rule or policy and without regard to individual merits must be rebuffed. Mr Stretton drew attention to an amendment made to s 501 of the Act by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) (the Amendment Act). The Minister made his decision on 28 October 2014. The amendments made to s 501 by the Amendment Act commenced on 11 December 2014. Materially, those amendments introduced new subsections s 501(3A) and 501(3B) into the Act and made related amendments to s 501(6). The new s 501(3A) and s 501(3B) provided:

(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.

(3B)    Subsection (3A) does not limit subsections (2) and (3).

45    As can be seen, the effect of the amendments is to require the cancellation of a visa by the Minister if nominated, satisfaction based, anterior matters, which include “sexually based offences involving a child are present”.

46    The use which Mr Stretton sought to make in these submissions was not for guidance as to the meaning and effect of the Act as it had previously stood. Instead, Mr Stretton pointed to the date of the Minister’s decision and the antecedent date (24 September 2014) when Mr Morrison made his Second Reading Speech in the House of Representatives. He sought to make reference to the Minister’s speech so as to develop a submission that the Minister must, having regard to that antecedent speech, have dealt with him as if the amendments which he was proposing to the House were already in force, i.e. as if the position was that he was obliged, given his satisfaction as to the offences committed by Mr Stretton, to cancel his visa.

47    This is not a use of a Second Reading Speech permitted by s 15AB of the Acts Interpretation Act 1901 (Cth). Whether or not the Minister fettered his discretion as alleged is contentious. The use sought to be made of the Second Reading Speech is so as to establish Mr Morrison’s intention when making the decision under review and to invite the drawing of, inferences or conclusions wholly or partly from that speech. Such uses are forbidden by s 16(3)(b) and s 16(3)(c) of the Parliamentary Privileges Act 1987 (Cth); see Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 19 FCR 223 at 230-231, as they were, in my view, before that Act by virtue of Article 9 of the Bill of Rights 1688 (Eng): see Church of Scientology of California v Johnson-Smith [1972] 1 QB 522 at 529-530. I have therefore made no reference to the Second Reading Speech and do not regard it as admissible.

48    Whatever may have been the influence of the quote out of context from Lam in the Issues Paper, and just on a fair of reading paragraph 54 of the Minister’s reasons in the context of the reasons as a whole, Mr Stretton’s submission should, in my view, be accepted. Does it necessarily follow from this that the Minister’s decision was thereby tainted by jurisdictional error?

49    In Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 506, Dixon J stated, “The application of a rule antecedently adopted does not vitiate an exercise of a discretion of the kind belonging to the Commission, unless there was a failure to consider the application as an individual case.” A qualification on this statement of principle is that the policy itself must be lawful. There is a distinction between the adoption of an antecedent policy which, for the purposes of consistency in public administration, does nothing more than guide the exercise of a discretion, leaving how it will be exercised in an individual case to the decision-maker and a policy which unlawfully limits the range of a discretion: British Oxygen Co v Minister of Technology [1971] AC 610 at 625 and 631.

50    As indicated above, Moana dictates that the Minister was obliged to take risk to the Australian community into account at the stage of exercising his discretion. The Minister has assessed the risk to the Australian community and found it to be low. He has then found that that low risk is not to be equated with no risk. Because of his view that, even with a low risk, serious harm to a member of the Australian community could result, the Minister has concluded that the visa must be cancelled. In Moana, Rangiah J also observed, at [72] – [74]:

72.    … I consider that the seriousness of an offence or other relevant past conduct may also lead the Minister to conclude that a visa should be cancelled in the discretion under s 501(2) without evaluating the likelihood that the visa holder will reoffend or engage in harmful conduct. It is implicit in s 501 that Parliament considers that a person who does not pass the character test poses a risk of harm of some kind, although that does not lead to a presumption that the discretion should be exercised in a particular way. In a particular case, however, the Minister may take the view the seriousness of the offence or conduct means that any risk is intolerable. It follows that in exercising the discretion in s 501(2), the Minister is not bound to engage in an evaluation of the likelihood of a person engaging in future conduct which may cause harm.

73.    Contrary to the appellant’s submission, I doubt whether Mortimer J held that the Minister must evaluate the static and dynamic factors personal to an individual that may affect the risk that the person may pose when exercising the discretion. I think that her Honour was merely illustrating the factors of the type that might influence the likelihood of a person engaging in future conduct which may cause harm. In any event, there is direct authority against the proposition that the Minister is bound to consider factors personal to the visa holder: Huynh at [74] per Kiefel and Bennett JJ. I am unable to see how s 501(2) can be construed to require the Minister to take into account such personal factors when considering the risk of harm.

74.    I consider that the Minister is not bound to conduct an evaluation of the likelihood of the visa holder engaging in future conduct that may cause harm when exercising the discretion under s 501(2). That is not to say that evaluation of such likelihood will not be centrally relevant to the exercise of the Minister’s discretion in most cases. The exercise of the discretion to cancel a visa without examining the likelihood of future harm may in some circumstances be unreasonable, in the sense of lacking an evident and intelligible justification: cf Minister for Immigration and Citizenship v Li [ (2013) 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ. However, s 501(2) cannot be construed to require the Minister to take into account that likelihood in all cases.

[Emphasis added]

Reading paragraphs [51] and [54] of the Minister’s reasons together, I do not consider that the Minister has, impermissibly, acted on a presumption that the presence of any risk means that the visa must be cancelled. Rather, what the Minister has done, in my view, is just what Rangiah J contemplated, in the sentence to which I have given emphasis, might be done in a particular case. The Minister has taken the view that the offences committed by Mr Stretton were so serious as to make any risk, even if that risk is low, intolerable. That was not either to fetter his discretion or to adopt an antecedent policy which was unlawful. It was, though, to put to one side the evaluation against countervailing considerations that the likelihood of Mr Stretton’s reoffending is low. It was also to equate subjective descriptions of an offence as serious with its objective seriousness.

51    This, in turn, leads to consideration of whether the exercise of the Minister’s discretion was unreasonable or, as Mr Stretton also contended, irrational?

52    In an article recently published in the Australian Bar Review, another retired judge of the High Court, the Honourable WMC Gummow AC has observed, “To describe the reasoning in an administrative decision as irrational or unreasonable may be mere persiflage.”: (Gummow WMC, “Rationality and reasonableness as grounds of review” (2015) 40 Australian Bar Review 1). There is, as the learned author notes, high authority for the proposition that such a description of a decision may “merely be an emphatic way of disagreeing with it” (Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [34]) but is without legal consequence. Yet, in context and as Rangiah J highlighted in Moana, at [74], an administrative decision may also be unreasonable in the sense outlined by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] (Li):

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]

53    As to what constitutes “unreasonableness” in the sense used in this passage, reference must be made to observations earlier made by Hayne, Kiefel and Bell JJ in Li, at [68] with respect to what was said by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230 (Wednesbury):

Lord Greene MR’s oft-quoted formulation of unreasonableness in Wednesbury has been criticised for “circularity and vagueness”, as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided. And the same principles evidently informed what was said by Dixon J about review of an administrative decision in Avon Downs Pty Ltd v Federal Commissioner of Taxation, which was decided less than two years after Wednesbury, at a time when it was the practice of the High Court to follow decisions of the Court of Appeal in England which appeared to have settled the law in a particular area.

[Footnote references omitted]

54    In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [119] to [137] and, latterly, in his journal article, Gummow J drew a distinction between the judicial review of the exercise of a discretionary power and the judicial review of a decision made under a provision the operation of which depended upon a state of anterior, administrative satisfaction with respect to particular matters. This distinction was drawn so as to demonstrate why, in his view, reliance upon what was said by Lord Greene MR in Wednesbury was misconceived in a case of the latter kind.

55    I am not though at liberty to depart from the discussion of principle in Li. Further, one of the cases to which the majority refer in Li at [68] is Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353, which concerned not the exercise of a discretionary power but rather a provision the operation of which depended upon an officer of the Executive being “satisfied” as to particular matters.

56    It is necessary now to return to Re Patterson and, in particular, to the judgement delivered in that case by Kirby J. In that case, a discretionary decision made under s 501(2) of the Act had earlier consensually been set aside. The matter was considered afresh by a Parliamentary Secretary, who exercised the discretion separately conferred under s 501(3) of the Act so as to cancel the visa “in the national interest”. Of this course, Kirby J observed, at [333]:

Those who advised the Minister (and later the respondent) to take the decision under s 501(3) of the Migration Act must be taken to have known that doing so would effectively deprive the prosecutor of the only relevant factual grounds for withholding a decision to cancel his visa. These were grounds based on discretionary considerations connected with his very long residence in Australia, his family connections, his maternal dependant, his lack of real connection with his country of birth and his compliance with parole conditions and efforts at rehabilitation.

His Honour further observed, at [338]:

Whilst it might be said that the general problem of paedophilia and criminal offences against children is one involving “the national interest”, the decision to be made by the Minister under s 501(3) of the Migration Act is not made at such a level of abstraction. It is one personal to the visa holder.

His Honour then concluded that, while this was the way the decision had been treated by the respondent, there was nothing placed before her which reasonably or rationally grounded a conclusion that the cancellation of the visa was in the national interest. Thus, for Kirby J, even a discretion exercised by a political officer and informed by a criterion as general as the national interest was not incapable of judicial review on just the basis later described by the majority in Li.

57    In this case, the national interest was not an express consideration, for the discretion fell to be exercised under s 501(2), not s 501(3), of the Act. But that did not mean that the decision was not one “personal to the visa holder”. That the Minister chose to act just on an expectation that Mr Stretton should “forfeit the privilege of being able to remain in Australia given the serious nature of his criminal offending” did not thereby render the exercise of his discretion immune from challenge on the ground of unreasonableness or irrationality, just as Kirby J had likewise concluded in Re Patterson in respect of an exercise of a discretion grounded in an assessment of the national interest. Further, repugnant though any paedophilia is in our society and even though Mr Stretton conceded that his offences were serious, it did not follow from this that the Minister was relieved from considering that subject objectively, at least by reference to the class of offence committed. Objectively and in a relative sense, these offences were at the lower end of the range of depravity and worse that paedophilia can entail. The length of the actual custodial element in the sentence imposed on him underscores that. Her Honour Judge McGinness made a like point in her sentencing remarks in discounting allegedly comparative sentences put to her by the Crown. The Minister was not given the benefit of any such assessment by his department in the Issues Paper.

58    Had the Minister chosen to act on his evaluation of the risk presented by Mr Stretton as “low”, tempered by an understanding of the objective seriousness of the offences concerned, he would then have had to confront and balance the countervailing factors (termed “discretionary considerations” by Kirby J in Re Patterson) which he noted. By the time when Mr Stretton came to commit these offences, he had been resident in Australia for nearly half a century, more than that by the time when the Minister made his decision. He came here as an infant. He had no ties with the United Kingdom, other than the circumstance of his birth. He had not even returned there to visit, much less did he have any adult experience whatsoever of living and working there.

59    Mrs Stretton likewise had no ties with the United Kingdom other than a circumstance of birth. Notwithstanding his offending conduct, Mr Stretton was not estranged from his wife of some 40 years. Nor was he estranged from any of his children save, for the most understandable of reasons, from the mother of the grandchild he molested. Nor was he estranged from his aged and ailing, Australian citizen father. Mr Stretton had had a troubled youth, in Australia, but a feature of his adulthood in Australia after he met his wife and until 2009 was a blameless life, sustained work and deep community and family involvement. By the time the Minister made his decision, Mr Stretton was ten months into the two year period of the suspension of the balance of his sentence, with not a hint of recidivism. There was no need to deport Mr Stretton in order to protect the victim or her siblings, for, though they lived in Australia, her and her mother remained estranged from him, as were that daughter’s other children (his only other grandchildren). The risk of harm to others was low. To cancel Mr Stretton’s visa would cast him adrift in his advancing years in a foreign land and remove him from the regular society of those of his children, each Australian citizens, who wished to continue association with him, not to mention the society of his own father. It would also present his blameless wife, likewise long a stranger to the United Kingdom and equally long a resident of Australia, with an agonising dilemma. On the one hand, she could stand by her husband abroad, not just with like hardships to her husband but with a hardship that extended also to losing regular society with the daughter and grandchildren who were estranged from Mr Stretton, not her; on the other hand, she could remain here and cast adrift a life partner, already assessed as having a risk of suicide.

60    The Minister’s decision was not bizarre. It was never part of Mr Stretton’s case that his decision was dishonest and, in any event, there is not a scintilla of evidence which would show that. The exercise of the discretion was though, with respect to the Minister and when all of the matters referred to in the preceding paragraph are considered objectively, unreasonable in the sense referred to by the majority in Li. Another way of describing the nature of the error, also found in Li, is to adopt a pithy turn of phrase used by Mr G Airo-Farulla: “Reasonableness, rationality and proportionality”, in Groves M and Lee HP, Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007) p 212 at p 215, which commended itself, at [30], to French CJ. The Minister has, with respect, “[taken] a sledgehammer to crack a nut”. His exercise of the discretion conferred on him was, in the circumstances, in excess of what, on any view, was necessary for the purpose it served.

61    It follows that the Minister’s decision was attended with jurisdictional error. It must be quashed. A consequence of that is that there is no lawful basis for Mr Stretton’s continued immigration detention. He must be released from immigration detention forthwith. The Minister must pay Mr Stretton’s costs, including reserved costs. There will be orders accordingly.

62    The nature of the jurisdictional error means that remission of the matter to the Minister for consideration afresh is not warranted.

Associate:    

Dated:    5 June 2015