FEDERAL COURT OF AUSTRALIA

Huynh v Minister for Immigration and Border Protection [2016] FCA 314

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant do pay the costs of the first respondent 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

BARKER J:

1    The applicant, Mr Chi Nghia Huynh, applies for judicial review of the decision of the Minister for Immigration and Border Protection cancelling his Class BB (Resident Return) visa under s 501(2) of the Migration Act 1958 (Cth). His is one of a number of such applications in recent times resulting from the cancellation of a visa-holder’s visa by the Minister on “character grounds”.

Visa status

2    Mr Huynh is a citizen of Vietnam, who arrived in Australia in September 1992 on a Class BF Subclass 200 (Refugee) visa as a 16 year old dependant of his aunt. On 23 May 1997, he was granted a Resident Return visa.

3    Mr Huynh first lived in New South Wales. Between approximately 1994 and 2000, he was convicted of a number of driving, dishonesty and drug-related offences. On 12 November 1998, he received a warning that he was liable to criminal deportation pursuant to s 200 of the Act.

4    Apparently, in order to extricate himself from crime and drugs, Mr Huynh moved to Perth, Western Australia in about 2001, where he formed a relationship with his present partner. In 2004, the first of Mr Huynh and his partner’s three daughters was born with severe intellectual and physical disabilities. Two younger daughters were born in 2007 and 2012.

5    On 12 December 2002, before he met his partner and his first daughter’s birth, a former Minister for Immigration and Multicultural and Indigenous Affairs exercised his discretion to cancel Mr Huynh’s Resident Return visa under s 501(2) of the Act on the basis of Mr Huynh’s criminal record. This decision was quashed by the former Federal Magistrates’ Court on 25 July 2003. See Huynh v Minister for Immigration [2003] FMCA 207. That decision was overturned on appeal to the Full Court of this Court. See Minister for Immigration & Multicultural & Indigenous Affairs v Huynh [2004] FCAFC 47.

6    Mr Huynh was then detained in immigration detention from 14 August 2007, before the former Minister exercised his discretion under s 195A of the Act to grant Mr Huynh another Resident Return visa on 20 August 2007, apparently having regard to his changed circumstances.

7    On 26 August 2010, Mr Huynh’s eldest daughter died at the age of six. At the time, Mr Huynh was her major caregiver. Following her death, it appears he resorted to using the drug heroin, which he had been using in New South Wales some 10 years earlier.

8    On 1 December 2010, Mr Huynh was charged with robbing a disabled man, with a weapon, to which he later pleaded guilty. On 5 December 2011, a year later, he was sentenced in the Supreme Court of Western Australia and received a sentence of two years’ imprisonment wholly suspended for a period 12 months. See The State of Western Australia v Huynh [2011] WASCSR 192.

9    Nearly four years later, on 22 June 2015, a notice of intention to consider cancellation of Mr Huynh’s Resident Return visa was sent to him by the Department of Immigration and Border Protection. On 27 July 2015, Mr Huynh’s legal representative made written submissions urging the Department not to cancel Mr Huynh’s visa.

10    On 29 September 2015, an officer of the Department made a submission to the Minister concerning the cancellation of Mr Huynh’s visa. Exercising his power under s 501(2) of the Act, the Minister personally considered and cancelled Mr Huynh’s visa on 14 October 2015. Mr Huynh was notified of the decision by a letter from the Department dated 30 October 2015.

Minister’s decision

11    The Minister exercised his discretion to cancel Mr Huynh’s visa under s 501(2) of the Act on the ground that Mr Huynh had not satisfied the Minister that he passed the character test as defined in s 501(6). Section 501 relevantly provides:

(1)     The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

…

(6)     For the purposes of this section, a person does not pass the character test if:

…

(a)     the person has a substantial criminal record (as defined by subsection (7))…

(7)     For the purposes of the character test, a person has a substantial criminal record if:

…

(c)     the person has been sentenced to a term of imprisonment for 12 or more months…

12    The Minister gave reasons for his decision as follows:

1.    This statement relates to the Class BB, Subclass 155 (Resident Return) visa held by Chi Nghia HUYNH at the time of my decision.

2.    As a result of my decision, any other visas held by Mr HUYNH (other than a protection visa or visa specified in the regulations) have been cancelled by operation of law, pursuant to s501F(2) of the Migration Act. Therefore Mr HUYNH does not hold any other visa.

3.    Also, any other visa applied for by Mr HUYNH (other than a protection visa or visa specified in the regulations) has been refused by operation of law, pursuant to s501F(2) of the Migration Act. Therefore Mr HUYNH has no unfinalised visa applications.

4.    S501(2) of the Migration Act enables me to cancel a visa that has been granted to a person if:

•    I reasonably suspect that the person does not pass the character test; and

•    The person does not satisfy me that the person passes the character test.

CHARACTER TEST

5.    On 5 December 2011 Mr HUYNH was convicted in the Supreme Court of Western Australia at Perth of armed assault with intent to rob for which he was sentenced to two years imprisonment.

6.    As a result of this sentence of imprisonment, Mr HUYNH has a substantial criminal record. I find that he does not pass the character test by virtue of s501(6)(a) of the Migration Act with reference to s501(7)(c) of the Migration Act.

7.    Mr HUYNH's agent has acknowledged that Mr HUYNH has a substantial criminal record. I find that he has not satisfied me that he passes the character test.

DISCRETION

8.    Having found that Mr HUYNH 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 HUYNH's visa, taking into account factors that I considered weighed against and in favour of cancelling Mr HUYNH's visa. In making my decision I was mindful that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia.

Criminal conduct

9.    In making my decision I considered the Government's commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens. I took into consideration that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are, and have been law abiding.

10.    In considering the nature and seriousness of Mr HUYNH's criminal offending I note that violent offences committed against vulnerable members of the community, such as that committed by Mr HUYNH are viewed very seriously.

11.    On 5 December 2011 Mr HUYNH was convicted in the Supreme Court of Western Australia at Perth of armed assault with intent to rob. I have had regard for Judge Jenkin's description of Mr HUYNH's offending. I note that the offence occurred on 1 December 2010, Mr HUYNH used a weapon to attempt to rob an obviously disabled man causing injuries to the victim.

12.    I note that on the same day Mr HUYNH was found guilty of driving without a valid motor driver's licence.

13.    Mr HUYNH was sentenced to two years imprisonment wholly suspended for twelve months for the armed assault with intent to rob offence.

14.    I find that the sentence Mr HUYNH received is a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered that the court viewed the offending as serious.

15.    I have also had regard for the frequency and cumulative effect of Mr HUYNH's total criminal history. I have considered that Mr HUYNH was convicted of numerous dishonesty and drug related offences between 1994 and 2001. I accept the description by Judge Jenkins that Mr HUYNH had a lengthy criminal record in the state of New South Wales during that time.

16.    While sentencing remarks are not available to provide context to much of Mr HUYNH's criminal history I find that his offending was viewed seriously by the courts in New South Wales on a number of different occasions, given he was sentenced to numerous terms of imprisonment in a period of approximately six years.

17.    I note that Mr HUYNH's criminal record in Western Australia prior to 1 December 2010 is substantially for less serious and non-violent offences. I accept that Mr HUYNH's general conduct improved during this time.

18.    I note that Mr HUYNH has not been convicted of any further offences since 5 December 2011.

19.    In considering the totality of Mr HUYNH's criminal record, I have considered that there is approximately a ten year gap where Mr HUYNH did not commit serious or violent offences. Mr HUYNH was not convicted of a serious offence between 30 August 2000 and 5 December 2011. Nonetheless, I find that the violent nature of his conduct on 1 December 2010 represented an escalation in seriousness in his offending, given his prior criminal history consisted of mostly non-violent dishonesty and drug offences.

Risk to the Australian Community

20.    I have considered that Mr HUYNH's ability to remain free of drugs will have a significant influence on his likelihood of reoffending. In assessing Mr HUYNH's risk to the community I have considered the assessments of the courts, Corrective Services in New South Wales and Western Australia, and the information submitted by Mr HUYNH and on his behalf.

21.    I note that many of Mr HUYNH's offences occurred while he was affected by drugs, and that many of his convictions are related to the possession or supply of prohibited drugs. I note that on 30 August 2000, Magistrate Betts drew a link between his offence of stealing a car and being under the influence of drugs and that Mr HUYNH admitted that at the time. I accept Magistrate Betts' assessment that at the time he had a problem with drugs.

22.    I have considered that Mr HUYNH was affected by heroin and prescription drugs on 1 December 2010 when he committed the serious violent offence against a disabled man.

23.    I have had due regard for Judge Jenkins' description of the antecedents of Mr HUYNH's offending noting his background as a refugee, his difficult upbringing and conflicts with family. I note that Mr HUYNH commenced taking drugs while still a teenager and became involved with undesirable influences from an early age. I have considered, in Mr HUYNH's favour, that he made attempts to move from New South Wales in the early 2000's to remove himself from a lifestyle of drugs and crime.

24.    With regard to the offence of 1 December 2010, I have carefully considered the sentencing remarks of the Supreme Court of Western Australia that describes the events leading up to Mr HUYNH's actions. I note that the tragic death of his young daughter, and his financial state, explain his relapse into heroin use. I accept that Mr HUYNH was in a severely distressed emotional state at the time of the offences.

25.    In this regard I have considered the sentencing remarks reference to a pre-sentence report that outlined the support available to Mr HUYNH and the opportunities available to him to rehabilitate. I note that Mr HUYNH provided references to the court from a number of community organisations and the prison chaplain that led to Judge Jenkins to regard his prospects of rehabilitation positively.

26.    I have considered that Mr HUYNH was subject to a three month pre-sentence order and a two year prison sentence suspended for 12 months. I have taken into account the remarks of Judge Jenkins and the report prepared by Western Australia Department of Corrective Services dated 8 March 2012 that indicated Mr HUYNH had made positive steps toward rehabilitation.

27.    Regarding Mr HUYNH's more recent efforts at rehabilitation I have carefully considered Mr HUYNH's submission and statements, as well as the submissions from Mr Putt and Mr McKrill. I have also considered the medical evidence of Dr Barr and the Freshstart Program. Having considered this information, I find that Mr HUYNH has maintained his efforts at rehabilitation, noting that he has voluntarily submitted to treatment with a Naltrexone implant and I note his recent urine tests indicate he is free of drugs. I accept that Mr HUYNH is resolved to maintain his progress toward rehabilitation, continue with employment and support his family.

28.    Having, considered this information, I am mindful that Mr HUYNH has previously made attempts at rehabilitation and relapsed into drug use and criminal behaviour. I note a report from the New South Wales Probation and Parole Service dated 24 September 2002 which indicates he completed a Vietnamese Offenders Drug and Alcohol Program on 26 July 2000 only to reoffend a few weeks later. And most recently, Mr HUYNH's relapse into drug use resulted in a very serious violent offence on 1 December 2010. For these reasons I remain guarded about Mr HUYNH's future prospects at remaining free of drugs.

29.    In addition to Mr HUYNH's efforts at rehabilitation, I have given consideration to his general conduct in the community, particularly since the expiry of his suspended prison sentence on 4 December 2012. I have also considered his insights into his offending.

30.    In making my assessment on the risk to the Australian community I have considered that Mr HUYNH has previously been warned about his criminal conduct following a decision not to deport Mr HUYNH, which he acknowledged on 19 November 1998. I further considered that Mr HUYNH's visa was cancelled on 19 December2002 because of further serious offending by him. I note that after a period of approximately four and a half years of not holding a visa while in Australia, Mr HUYNH was granted a visa in by the former Minister for Immigration and Citizenship under s195A of the Migration Act on 20 August 2007.

31.    Since 20 August 2007 Mr HUYNH has been convicted of further dishonesty and driving offences. He has also been convicted of the offence of armed assault with attempt to rob.

32.    I have considered that Mr HUYNH's criminal record in New South Wales displays a disregard for judicial orders. On 13 April 2000, Mr HUYNH was sentenced to a good behaviour bond of three years for a stealing. Mr HUYNH was subsequently convicted of a number of offences while subject to that bond.

33.    I note that Mr HUYNH was involved in a number of incidents while in prison in New South Wales. These incidents included fighting and drug related incidents. I have given this consideration less weight given the time that has expired since these incidents occurred.

34.    I have considered that Mr HUYNH has not been convicted of any further criminal offences since 5 December 2011 and that the available evidence indicates he complied fully with his parole order.

35.    I find that Mr HUYNH has disregarded opportunities to not commit further offences afforded to him by a prior departmental warning, and the grant of a permanent visa by the former Minister for Immigration and Citizenship on 20 August 2007 following the cancellation of his visa on 19 December 2002.

36.    I have also considered the various assessments as to his likelihood of reoffending. I have considered the evidence of the psychologist in the pre-sentence report which rated Mr HUYNH a low likelihood of reoffending on 5 December 2011. I note that the Immigration Report prepared by Western Australia Department of Corrective Services dated 8 March 2012 held positive outlook for Mr HUYNH's future behaviour. Mr HUYNH has continued to progress with efforts at rehabilitation since both risk assessments and as such, I find Mr HUYNH to have a low likelihood of reoffending.

37.    If Mr HUYNH did engage in further offending of a similar violent nature, it could result in physical harm to members of the Australian community.

Best interests of minor children

38.    I gave primary consideration to the best interests of any children who are less than 18 years of age and whose best interests are affected by cancellation of Mr HUYNH's visa.

39.    Mr HUYNH has two Australian citizen minor children, J[…] (dob: … 2007), and S[…] (dob: … 2012). Mr HUYNH lives with the children and shares parental responsibility with his de facto partner, … .

40.    I have considered the concerns expressed by Mr HUYNH and his de facto partner, … , for the welfare of both children in the event that Mr HUYNH's visa is cancelled and he returns to Vietnam.

41.    I note that Mr HUYNH has indicated that … and their children would not accompany Mr HUYNH to Vietnam in the event his visa is cancelled resulting in the potential breakdown of their family unit.    

42.    I have also had regard to Mr Putt's description of the nature of Mr HUYNH's relationship with [his children], and have considered his submission regarding Australia's obligations to the best interests of Mr HUYNH's children.

43.    I accept that Mr HUYNH has an ongoing and close relationship with his children and that he shares parental responsibilities with his de facto partner, … . Given his ongoing close relationship with his children, the ongoing financial and emotional support and care he provides, and the likelihood that visa cancellation will result in the children being separated from their father, I find that it is in the best interests of [his children] for Mr HUYNH's visa not to be cancelled.

Expectations of the Australian community

44.    In making my decision I have been mindful of the principle that the Australian community would expect that non-citizens who commit serious crimes in Australia can and should have their visa cancelled.

45.    I have noted Mr HUYNH's representative's comments that the Australian community would recognise that Mr HUYNH is part of the community and afford him a higher level of tolerance as he has lived in Australia for many years since childhood.

46.    The Australian community expects that non-citizens obey Australian laws while in Australia. Mr HUYNH has breached this trust and has been convicted of offences in Australia including drug offences, dishonesty offences and a serious violent offence of armed assault with intent to rob, and I find it is appropriate to cancel the visa held by such a person.

Other Considerations

International non-refoulement obligations

47.    Mr HUYNH has made claims that may give rise to international non-refoulement obligations, however Mr HUYNH is able to make a valid application for another visa. In particular I note that Mr HUYNH is not prevented by s48A of the Migration Act from making an application for a Protection visa. Thus it is unnecessary to determine whether non-refoulement obligations are owed to Mr HUYNH for the purposes of this decision.

Ties to Australia

48.    Mr HUYNH has resided in Australia for 23 years, including all of his adult life having arrived as a teenager, aged 16.    

49.    I have given less weight to this consideration as Mr HUYNH started to offend soon after arriving in Australia.

50.    Mr HUYNH arrived in Australia with his Aunt, … on 24 September 1992. [His Aunt] was Mr HUYNH's guardian when he arrived in Australia and was his sole immediate family member when he arrived in Australia. I have considered that [his Aunt] would experience some hardship given that Mr HUYNH is the only familial support available to her in Australia and that she has future plans to reside with him.

51.    I have considered that Mr HUYNH resides with his de facto partner, … and their two children in … Western Australia. I have considered the submissions of Mr HUYNH, [his partner] and those on his behalf that describe the nature of their relationship, the financial and emotional support provided by Mr HUYNH. I note that Mr HUYNH and [his partner] have recently purchased a property together and that [his partner] relies on Mr HUYNH's financial support.

52.    I have had regard for the concerns expressed by Mr HUYNH and [his partner] for the welfare of their family in the event that Mr HUYNH's visa is cancelled. I am cognisant of the possibility that such a decision will result in the break-up of their family unit.

53.    In considering Mr HUYNH's ties to the community I have had regard for the submission of Mr Rob McKrill a social worker for the family at Princess Margaret Hospital for Children. I note the difficult circumstances the family experienced with the death of their daughter, [S], I have also considered Mr McKrill's submission that the family remains socially isolated and vulnerable. I accept that cancellation of Mr HUYNH's visa may further this isolation. I have considered that this would also result in [Mr Huynh’s partner] and her family experiencing financial hardship and severe emotional distress.

54.    I have considered the effect of visa cancellation upon Mr HUYNH's immediate family in Australia and accept that [his partner] and their children, and his aunt … would experience emotional hardship.

55.    I have considered that Mr HUYNH has a consistent employment record in Australia since 2010. I note that prior to 2010, Mr HUYNH was the primary carer for his severely disabled daughter and was not able to work. I find that Mr HUYNH has made a positive contribution to the Australian community since 2010.

Extent of impediments if removed

56.    I have had regard to the impediments that Mr HUYNH will face if removed from Australia to his home country in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of Vietnam.

57.    Mr HUYNH is 39 years of age and of relatively good health.

58.    I have considered that Mr HUYNH has expressed concern for his employment prospects in Vietnam given he is not fluent in the Vietnamese language. I have also considered the submission of Mr HUYNH's agent, Mr Putt, that Mr HUYNH does not speak fluent Vietnamese and would face difficulties gaining employment. I accept that Mr HUYNH will experience some hardship given he does not speak fluent Vietnamese and that his immediate employment prospects in Vietnam may be difficult.

59.    I have considered that the effect of cancelling Mr HUYNH's visa would be to separate him from his de facto partner, and two children. I note that [his partner] and their two children are Australian citizens. I have had given consideration to the emotional hardship that may be faced by Mr HUYNH in the event he is separated from his family.

60.    I have considered the statements of Mr HUYNH and his general practitioner that he is generally in good health. Notwithstanding this declaration, I note that Mr HUYNH has voluntarily received Naltrexone implants to reduce the likelihood of further illegal drug use. I accept that such treatment may not be available to Mr HUYNH in Vietnam and this may be detrimental to his efforts at drug rehabilitation.

61.    I have considered that Mr HUYNH has not resided in Vietnam since he was a teenager, noting he has spent approximately four years in Malaysia prior to arriving in Australia at the age of 16. I have considered that Mr HUYNH has retained some familiarity with Vietnamese society and culture nonetheless he would face some hardship in adjusting to Vietnamese society and culture as he is not fluent in the Vietnamese language.

62.    I note that Mr HUYNH's immediate family, including father, mother, and siblings continue to reside in Vietnam and that he has visited them on two occasions. I accept that the nature of the relationship with his family in Vietnam is not close, and they will not be in a position to provide financial support to him in the event he returns to Vietnam. Nonetheless, I find that Mr HUYNH has maintained some ties with his immediate family in Vietnam and the proximity of his immediate family would assist to alleviate some of the hardships he will face in returning to Vietnam. While Mr HUYNH is of relatively good health, of working age, and retains some familial support in Vietnam, he nonetheless may face difficulty in securing employment and is unlikely to receive the level of social and welfare support to which he is accustomed in Australia.

CONCLUSION

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

64.    Mr HUYNH has committed a very serious crime, that of armed assault with intent to rob which is of a violent nature, and involved a vulnerable member of the community and Mr HUYNH should expect to forfeit the privilege of staying in Australia.

65.    I find that the Australian community could be exposed to great harm should Mr HUYNH reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr HUYNH. The Australian community should not tolerate any further risk of harm.

66.    I found the above consideration outweighed the countervailing considerations in Mr HUYNH's case, including the best interests of his two minor children, non-refoulement obligations and impact on family members in Australia. I have also considered the length of time Mr HUYNH has made a positive contribution noting his employment record, and the consequences of my decision for minor children and other family members.

67.    I am cognisant that where great harm could be inflicted on the Australian community even strong countervailing considerations are insufficient for me not to cancel the visa. This is the case even applying a higher level of tolerance of risk of reoffending by Mr HUYNH that I otherwise would, because he has lived in Australia for most of his life.

68.    In reaching my decision I concluded that Mr HUYNH represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.

69.    Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Mr HUYNH's Class BB, Subclass 155 (Resident Return) visa under s501(2) of the Migration Act.

Judicial review issues

13    Mr Huynh’s amended originating application for review of the Minister’s decision filed 8 February 2016 identifies four grounds of review which may be stated as follows:

(1)    The Minister’s decision was so unreasonable that no decision-maker acting reasonably could have made it.

(2)    The Minister’s decision was so illogical or irrational, or both, that no rational or logical decision-maker could have made it.

(3)    The Minister’s decision was so disproportionate an exercise of his power under s 501(2) of the Act that the decision was irrational and unreasonable.

(4)    The Minister’s decision was affected by jurisdictional error as, when assessing the seriousness of the offence for which Mr Huynh was convicted on 5 December 2011, the Minister proceeded on the basis that the sentence received by Mr Huynh involved incarceration as a sentence of last resort, whereas the sentence received was a suspended sentence that was not a sentence of last resort. In so doing, Mr Huynh contends the Minister took into account an irrelevant consideration and/or failed to take into account a relevant consideration.

14    The first three grounds raise the issue of whether the Minister’s decision to cancel Mr Huynh’s visa on character grounds was legally unreasonable. The fourth ground raises the issue of whether the Minister took into account an irrelevant consideration.

Was the Minister’s decision legally unreasonable?

15    As the decisions of the Full Court of this Court in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 and Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 indicate, the High Court addressed, or readdressed, the doctrine of legal unreasonableness, as a ground for invalidating an administrative decision on the basis of jurisdictional error, in Minister for Immigration and Citizenship v Li and Another (2013) 249 CLR 332; [2013] HCA 18. There can be no doubt, on any measure, that the unanimous decision of the High Court in Li is of general significance to the law governing judicial review of administrative actions.

General principles

16    In Li, the plurality (Hayne, Keifel and Bell JJ) essayed the doctrine at [63] to [65] and following. At [66], their Honours said that the approach of the courts does not deny that there is an area “within which a decision-maker has a genuinely free discretion”. Their Honours added that “[t]hat area resides within the bounds of legal reasonableness”. They observed that courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.

17    At [72], the plurality stated that whether a decision-maker be regarded, by reference to the scope and purpose of a statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will, in each case, be that the decision-maker has been unreasonable in a legal sense.

18    At [74], the plurality noted that the submissions in that case did not draw upon a proportionality analysis.

19    At [76], they added that unreasonableness may also be “an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power”. They said that even where some reasons have been provided, it may nevertheless not be possible for a court to comprehend how the decision was arrived at, and stated:

Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

20    French CJ, at [30], said that the requirement of reasonableness is not a “vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker”. The Chief Justice added that a distinction may arguably be drawn between rationality and reasonableness on the basis that “not every rational decision is reasonable”. His Honour, however, did not think it necessary for the purposes of the case then before the Court to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts.

21    The Chief Justice added, at [30], however, that, be that as it may, a “disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut [footnote omitted], may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves”.

22    Gageler J, at [110], considered it was fair to say that if a discretionary power is exercised in a way in which a reasonable repository of the power might exercise it, the exercise of the power is supported by the statute which confers it, whether the discretion is judicial or administrative in nature. His Honour recognised, however, at [111], that it is harder to be satisfied that an administrative body has acted unreasonably, particularly when the administrative discretion is wide in its scope or is affected by policies of which the Court has no experience.

23    In Stretton, Allsop CJ agreed with the reasons of Griffiths J, but added observations of his own. At [5], his Honour discussed the general principles underlying the doctrine of legal unreasonableness arising from the three judgments in Li. At [6], he said that each of the judgments sought to give explanatory content to the concept of legal unreasonableness and that the judgments identified two different contexts in which the concept was employed: a conclusion after the identification of jurisdictional error for a recognised species of error, and an “outcome-focused” conclusion without any specific jurisdictional error being identified.

24    At [7], the Chief Justice said that it is in relation to the “outcome-focused” application of the concept, that precise definition, beyond explanation of the operative notion and of the legal technique by which to make the assessment, becomes “productive of complexity and confusion”. He observed that it is in this area of “decisional freedom” of a decision-maker that minds might differ.

25    At [8], his Honour cautioned, however, as do the judgments in Li, that the concept does not provide a vehicle for the Court to “remake the decision according to its view as to reasonableness” and that the Court’s function is a supervisory one as to legality.

26    Ultimately, he said, at [10], this concept of legal unreasonableness is not amenable to “minute and rigidly-defined categorisation or a precise textual formulary”.

27    At [11], the Chief Justice made his point in these terms:

The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

Stretton and Eden and s 501

28    Mr Stretton had come to Australia from the United Kingdom as a six year old child. While he had engaged in some criminal behaviour as a juvenile, it was his conviction for paedophilia as an adult (in relation to a granddaughter) that led to the Minister cancelling, on character grounds, his permanent visa to reside in Australia. He had resided in Australia for 52 years at that point. He was married and had children and other grandchildren. At first instance, (Stretton v Minister for Immigration and Border Protection (No 2) (2015) 231 FCR 36 at [59]; [2015] FCA 559) the primary judge explained that Mr Stretton had no ties with the United Kingdom, he had never returned there to visit and he had no adult experience whatsoever of living and working there. The judge added that by the time the Minister made his decision, Mr Stretton was 10 months into the two year period of the suspension of the balance of his sentence of imprisonment, “with not a hint of recidivism”. His Honour considered there was no need to deport Mr Stretton in order to protect the victim or her siblings. He said, “The risk of harm to others was low”. The primary judge considered that the Minister’s decision, when all of the matters referred to were considered objectively, was unreasonable in the sense referred to by the plurality in Li. Putting it another way, he said the Minister had taken a “sledgehammer to crack a nut” and the decision was in excess of what, on any view, was necessary for the purpose it served.

29    In Stretton, the Chief Justice, at [21], said the difficulty with this reasoning was that it was expressed as the primary judge’s view as to what was reasonable. He, himself, made an evaluation of what was necessary for the protection of the Australian community, principally, if not wholly, however, by reference to the young children in Mr Stretton’s immediate family. The Chief Justice said it would seem that this approach was brought about by a view of the need for the assessment to be “objectively unreasonable”. The Chief Justice added that it was not a correct approach for the Court on judicial review to assess the lawfulness of the decision under s 501 by asking whether the exercise of discretion was necessary for the purpose. The correct question, or perspective, the Chief Justice considered, if one is looking at the outcome in question, is not whether the Court thinks the decision is reasonable, or necessary for the purpose, or not, as the case may be; rather, it is whether a decision-maker could reasonably come to the conclusion.

30    At [22], Allsop CJ said this:

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

31    The Chief Justice, at [23], further remarked that a decision was made that some may characterise as hard, given Mr Stretton’s long connection with Australia, his deep remorse and his family circumstances. His Honour added, however, that the decision was “defensible as a rational exercise of power, given the nature of the offending and a risk of reoffending, and the protective scope and purpose of the provision”.

32    Griffiths J also gave close consideration to the judgments in Li and the nature of the discretion exercisable by the Minister under s 501. From the authorities and his Honour’s analysis of the purpose and scope of the Minister’s powers, Griffiths J considered, at [72], that the Minister did not exceed his lawful authority in determining to cancel Mr Stretton’s visa. He disagreed with the primary judge’s view that the Minister put to one side the evaluation against countervailing considerations that the likelihood of Mr Stretton’s reoffending was low. Rather, the statement of reasons, his Honour said, revealed that the Minister properly evaluated the countervailing considerations which were in favour of not cancelling the visa with the Minister’s primary concern to protect the Australian community in the event that Mr Stretton reoffended, even where the risk of that was accepted to be low. He considered that it was reasonably open to the Minister to reach the ultimate conclusion which he did after properly weighing the relevant competing considerations.

33    Griffiths J, at [73], also disagreed with the primary judge’s view that the Minister’s assessment that Mr Stretton’s offences were so serious as to make even a low risk of him reoffending to be “intolerable”. His Honour said that what the Minister was effectively saying was that, because any reoffending by Mr Stretton could result in serious harm to a member of the Australian community, which he viewed as unacceptable, this outweighed the strong countervailing considerations in favour of not cancelling the visa. He said that in his view, it was within the Minister’s authority to come to that view.

34    At [75], Griffiths J, as had Allsop CJ, disagreed with the primary judge’s analysis that the Minister’s decision was unreasonable because it was the result of an exercise of discretion which, in the circumstances, was “in excess of what, on any view, was necessary for the purpose it served”. Griffiths J emphasised “necessary”. He said the word does not appear in either s 501(2) or the Minister’s statement of reasons. His Honour thought the primary judge had introduced an extraneous concept into the analysis.

35    Griffiths J, at [75], also made the point, that he considered it was evident from the Minister’s statement of reasons in that case, that the Minister appreciated that the power was not confined to the single purpose of protecting the Australian community and that he was also obliged to take into account matters which were personal to the visa holder.

36    Wigney J, the third member of the Court, agreed with the reasons of Griffiths J, together with the additional analysis and reasoning of the Chief Justice. He agreed in particular, at [91], that the concept of legal unreasonableness is not amenable to minute and rigidly-defined categorisation or a precise textual formulary, especially when it comes to the outcome-focused application of the concept. At [92], his Honour also emphasised the Court’s role is strictly supervisory.

37    In identifying four key findings of the primary judge, with which he disagreed, Wigney J made the following points:

(1)    A fair reading of the Minister’s reasons revealed that the Minister expressly had regard to the fact that the risk of Mr Stretton reoffending was low. He did not put that evaluation to one side because he viewed any risk as intolerable.

(2)    A fair reading of the reasons revealed the Minister did form a view about the objective seriousness of Mr Stretton’s offence.

(3)    There was no basis for the finding that the Minister did not “confront and balance” the countervailing factors.

(4)    While the primary judge was plainly of the view that, in all the circumstances, the cancellation of the visa was in excess of what was necessary to protect the Australian public, it was equally clear that reasonable minds might differ in relation to the difficult decision that had to be made by the Minister.

38    At [103], Wigney J, like the Chief Justice and Griffiths J, considered that the primary judge effectively remade the decision which the Parliament had vested in the Minister, according to his Honour’s own view of reasonableness.

39    In Eden, a Full Court comprised of the same three judges who formed the coram in Stretton, confirmed, in a judgment of the Court, the reasoning and approach applied in Stretton. At [16], the Court emphasised that the Minister’s discretion, once enlivened, is substantially unfettered in the sense that there is no list of factors which the Minister must take into account. It does not follow, however, that the power is without limitation. The Minister may not, for example, act arbitrarily or capriciously. Nor does it follow that the Minister is not required to take certain considerations into account, having regard to the subject matter, scope or purpose of the Act.

40    At [35], the Court said it appeared that one basis for the primary judge’s conclusion in that case was that a cancellation of Mr Eden’s visa was “unreasonable or plainly unjust” or lacked an “evident and intelligible justification”. At [37], the Court said it would also appear that another basis for the primary judge’s conclusion was that, in the primary judge’s view, the decision was unreasonable as a disproportionate exercise of discretion.

41    At [70], the Court considered the primary judge effectively found that the Minister’s view that Mr Eden’s offence was a “very serious” offence, was not a finding open on the objective facts, particularly having regard to the fact that a sentence of imprisonment was wholly suspended.

42    Ultimately, at [93], the Court said it was difficult to avoid the conclusion that the primary judge did not correctly apply the principles relating to legal unreasonableness. His Honour did not evaluate the decision with a view to ascertaining whether it was within a range of lawful outcomes, having regard to the terms, scope and purpose of the Act, and s 501(2) specifically. Rather, his Honour assessed what he considered to be reasonable and effectively concluded that any other outcome must have been unreasonable, and therefore in jurisdictional error. He remade the decision on the basis of his own view of reasonableness.

43    At [97] and [98], the Court said this:

97     There could be little doubt that Mr Eden’s circumstances presented the Minister with a difficult decision about which reasonable minds could differ. Mr Eden received the bare minimum sentence necessary to enliven the s 501(2) discretion by reason of the operation of s 501(6)(a) and (7). He was sentenced on the basis that his offence was the result of a mistake, albeit one not based on objectively reasonable grounds. His offence was perhaps towards the low end of the scale of seriousness of sexual assault offences. It was accepted that the risk of him re-offending was low. In the four years since his conviction, he had committed no further offences and he and his family had developed further ties with Australia.

98     On the other hand, it is difficult to accept that the Minister’s findings concerning the potential risk of harm to the Australian community, should Mr Eden be permitted to remain in Australia, were not findings that were reasonably open. The Minister reasoned that, whilst the prospects of Mr Eden reoffending were low, the harm that would be suffered if he did was great. Given the sexual nature of the offence and the harm that was in fact suffered by the victim, the Minister’s view that the risk of harm was an unacceptable risk was a view that was open on the facts. It could not be considered to be in any sense unreasonable, illogical or irrational.

Mr Huynh’s submissions

44    In this application, in his written submissions, Mr Huynh accepts that the preconditions to the existence of the Minister’s power under s 501(2) of the Act were satisfied by his December 2011 conviction and sentence.

45    Mr Huynh says grounds 1 to 3 of his application are put in what the Full Court in Stretton and Eden described as an “‘outcome focused’ conclusion without any specific jurisdictional error being identified”.

46    Having regard to what French CJ said in Li, at [30], Mr Huynh submits that a disproportionate exercise of an administrative discretion may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves. He submits such an approach to be an application of the principles discussed in Li, and within the limitations those principles impose on curial review of administrative decisions.

47    Consequently, Mr Huynh submits that central to grounds of judicial review alleging that an administrative decision is “unreasonable”, “irrational” or “disproportionate”, is the identification of the object and purpose for which the statutory power was created. In the case of s 501(2) of the Act, he accepts that the power to cancel the visa of a person with a “substantial criminal record” exists to eliminate or reduce risk of future harm to the Australian community. See Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367; [2015] FCAFC 54.

48    Mr Huynh submits that, on the authorities, a decision under s 501(2) to cancel a visa which is manifestly disproportionate having regard to the risk of future harm to the Australian community and the consequences to the visa holder will be invalid as legally unreasonable.

49    Mr Huynh highlights that, at [15] to [19] of his statement of reasons for his decision, the Minister considered Mr Huynh’s criminal record prior to 5 December 2011 and acknowledged this history “consisted mostly of non-violent dishonesty and drug offences”. Further, Mr Huynh notes the Minister acknowledged the link between the offences committed by Mr Huynh and Mr Huynh’s previous drug use; that Mr Huynh had not been convicted of any further criminal offences since 5 December 2011 and had fully complied with his parole order; that Mr Huynh was now free of drugs and that he was “resolved to maintain his progress toward rehabilitation, continue with employment and support his family”; and that a psychologist had assessed Mr Huynh as having a “low likelihood of reoffending”, and the Minister himself made the same finding.

50    At [37] of the Minister’s statement of reasons, Mr Huynh notes the Minister asserted that if Mr Huynh “did engage in further offending of a similar violent nature, it could result in physical harm to members of the Australian community”. While Mr Huynh accepts this, he asserts there was no evidence to suggest there was any risk of him engaging in the conduct for which he was convicted on 5 December 2011. He submits that such a conclusion was irrational and inconsistent with the observations and findings the Minister made at [49] above.

51    Mr Huynh further submits that since 2000, his violent crime was a one-off event, with a compelling explanation that was accepted by the Minister. He says the assertion that, if a person engages in violent crime it may result in harm to members of the community, is something that could be said of any Australian.

52    He contends that all the evidence of his conduct since 1 December 2010 is against the conclusion that he may commit further violent crime – he is a loving father with a stable job, drug free, and looking forward to purchasing his first home and building a life for his family. Consequently, Mr Huynh submits there was no logical basis for the Minister to conclude that there was any potential for substantial harm from future offending and the Minister did not engage in a reasonable assessment of the risk of reoffending.

53    Mr Huynh argues it was legally unreasonable for the Minister to conclude, at [65] of his statement of reasons, that the Australian community would be exposed to great harm should Mr Huynh reoffend in a similar manner and, at [68], that Mr Huynh represented an “unacceptable risk of harm to the Australian community”.

54    He further argues that, had the Minister acted logically on the basis of an analysis of the evidence, in assessing the risk of future harm, then rational and logical consideration of the objective evidence demonstrated that:

•    the Applicant had a history of low-level offending from about 1994, due, at least predominantly, to involvement with drugs: Reasons [15], [21];

•    the assault on 1 December 2010 (sentenced on 5 December 2011) was a one-off serious violent offence. The cause of the event was a combination of a relapse into heroin use and the Applicant being in a severely distressed emotional state, following the death of his daughter [S]: Reasons, [24];

•    since 1 December 2010, the Applicant has not committed any offences (Court Book, p 70), and is drug free: Reasons, [27];

•    the expert evidence that exists is that the Applicant had a low risk of of reoffending as at 5 December 2011 (Court Book, p 36). That risk can only have decreased in the period between December 2011 and the date of decision, given that the Applicant had remained drug and crime free. (Reasons, [18]-[20]);

•    there is no reasonable risk that the Applicant might commit another serious and violent crime.

55    Further, Mr Huynh submits that a legally reasonable assessment of the risk of future violent offending could not reasonably overcome the countervailing factors as found, which, he contends, included:

•    the Applicant’s ongoing and close relationship with his children [43];

•    the Applicant’s position as provider of financial support for his family unit [43], [51];

•    finding that it is in the best interests of [his children] that the Applicant’s visa not be cancelled [43];

•    the concerns expressed by [his partner] about the welfare of the children, in the event that the Applicant were deported, [40];

•    the Applicant’s family unit is likely to break down if he is deported, because his partner and children will not accompany him to Vietnam, [41], [52];

•    the finding that, if the Applicant’s visa is cancelled, [his partner] and the Applicant’s children would experience emotional hardship, [54];

•    the fact that the Applicant has been in Australia for 23 years, [48];

•    the finding that the Applicant has made a positive contribution to the Australian community since 2010, has had a consistent employment record since that time, and that the reason for the Applicant not having a consistent employment record before 2010 is that he was caring for [S], [55];

•    the Applicant is undergoing Naltrexone treatment which may not be available in Vietnam, so being in Vietnam may be detrimental to the Applicant’s efforts at drug rehabilitation, [60];

•    the fact that the Applicant is not fluent in Vietnamese, and so would experience some hardship in adjusting to Vietnamese society and culture, [58], [61];

•    the fact that the Applicant is not close to his relations in Vietnam and those relations cannot provide financial support to him, [62];

•    the fact that the Applicant may face difficulty in securing employment in Vietnam, [62].

56    Mr Huynh submits that the Minister purported to exercise the power in s 501(2) of the Act to deport him to a country with which he has little connection, knowing he has little prospect of any form of support or employment, and that it would cause great hardship and distress to him and his family, in circumstances where an objective rational assessment of his criminal history, drug use and rehabilitation indicates that there is no real future risk of harm to the Australian community. Consequently, he submits that the decision is so disproportionate an exercise of power that it amounts to jurisdictional error.

57    In oral submissions made on behalf of Mr Huynh, senior counsel particularly focused on what French CJ had said in Li at [30], and submitted that, in this case, the Minister’s decision is so disproportionate to the purpose of the power that it is unreasonable within the confines of the permissible principles. Senior counsel recognised that within the reasons, as the Minister contends in this case, one can find an evident and intelligible justification for the decision made – using the words of the plurality in Li – but nonetheless what is left open is that the decision arrived at, the outcome arrived at, is nonetheless so unreasonable when considered against the statutory power so as to vitiate the decision.

58    Senior counsel, recognising that in Stretton and Eden the Full Court had found that the primary judge, in finding unreasonableness, had substituted his opinion as to what a reasonable executive decision would be for that of the Minister, contended that the use of “verbal formulations” in the Minister’s reasons made it difficult to press the unreasonableness argument.

59    Senior counsel, acknowledging that the Minister’s decision on the face of it may appear rational, contended that the Minister’s treatment of the question of unacceptable risk of harm, constituted a “verbal formula”. That is to say, it purports to give a reason but, that of itself, is not enough. Senior counsel put it this way:

The applicant realistically is in no different position from any other resident of Australia. There would not be anyone in this Court who could be said to risk-free from offending in the future.

60    Senior counsel contended that, when put in context of no violent offending by Mr Huynh from August 2000 up until December 2010, for the Minister to reason that the risk of such further offending is unacceptable, shows a disproportionality in decision-making – because it is difficult to imagine the circumstances in any way repeating themselves or putting Mr Huynh in the position he was in on 1 December 2010.

61    In response to a question from the Court whether, if the submission made on behalf of Mr Huynh were correct, then in every circumstance where the Minister accepted there was a low likelihood of reoffending, the Minister would not be able, in a legally reasonable way, to exercise the power, senior counsel acknowledged that the particular facts of each case required close analysis and it was not possible to state a general conclusion to the question. He acknowledged that there are cases where there may have been a history of violence and a history of warnings, which have been ignored, and even with a lengthy break until more recent offending, the history of the case would be sufficient to justify the decision made and to enable it to be characterised as legally reasonable.

62    Senior counsel confirmed that the challenge made to the Minister’s decision in this case is an outcome focused challenge. Mr Huynh does not say the decision is irrational because there is no reason advanced. There is an evident and intelligible justification in the sense that the Minister does purport to give reasons. The question concerns the Minister, having accepted the low risk of reoffending and the extraordinary circumstances explaining the offending, nonetheless making the decision that he did. In short, senior counsel submitted that having regard to the accepted low risk of reoffending, for the Minister to make the decision that he did, and to cancel Mr Huynh’s visa, was a disproportionate outcome having regard to the scope and purpose of the power to cancel a visa on character grounds.

Minister’s submissions

63    The Minister contends the following statements of principle of the Full Court in Eden are of particular relevance with regards to grounds 1 to 3:

(1)    The concept of legal unreasonableness concerns the lawful exercise of power. Absence of legal unreasonableness is an essential element in the lawfulness of decision-making (at [58], [93] and [104]).

(2)    The Court’s task in deciding whether the Minister’s decision was legally unreasonable is strictly supervisory – it does not involve the Court reviewing the merits of the decision, substituting its own view as to how the decision should have been exercised or remaking the decision according to its own view of reasonableness (at [59]).

(3)    Within the boundaries of the power to make the decision there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion and where even a reasonably based disagreement with the decision does not demonstrate that it was beyond power. The decision will only be legally unreasonable if it was beyond the possible lawful outcomes of the exercise of the power (at [62], [65], [91], [93] and [104]).

(4)    In order to identify and assess the bounds of legal reasonableness it is necessary to construe the applicable statute and evaluate the nature and quality of the decision by reference to the subject matter, scope and purpose of the statutory power (at [63]).

(5)    In the case of the cancellation power under s 501(2) of the Act, it has been entrusted to the Minister. Where the power is exercised personally, there is no merits review of the decision. Intervention by the Court on the basis of legal unreasonableness would be fairly rare and only occur in relatively clear cases (at [103]).

(6)    Where there are published reasons for decision that provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered legally unreasonable (at [64]).

64    Citing the statements of Allsop CJ (at [15]) and Griffiths J (at [75]) in Stretton, the Minister states that a purpose of the cancellation power under s 501 of the Act is the protection of the Australian community. Given this purpose, he submits that where a decision is made personally by the Minister, there is necessarily an evaluative judgment required in the making of the decision in which there is a broad and extensive “decisional freedom” – a submission the Minister submits is further enhanced by the object of the legislation in s 4 of the Act, “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”.

65    The Minister notes the positive findings made by him that militated against cancellation of Mr Huynh’s visa, as highlighted by Mr Huynh in his amended originating application and written submissions, but contends that the weighing of the relevant factors and facts was for the Minister. The Minister contends that, in his statement of reasons, he engaged in this process and notes that Mr Huynh’s written submissions do not contain any assertion that the Minister failed to have regard to any fact that supported non-cancellation.

66    The Minister submits there was no legal unreasonableness in the Minister deciding, at [68] of his statement of reasons, that Mr Huynh represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the countervailing considerations. Further, he says each of the following findings, at [64]-[65], were open to him and involved no error:

(1)    Mr Huynh had committed a very serious crime against a vulnerable member of the community, in the form of a disabled man.

(2)    He could not rule out the possibility of further offending by Mr Huynh even though the risk was “low”.

(3)    If Mr Huynh reoffended in a similar manner, the Australian community would be exposed to “great harm”.

67    As found by the Court in Eden at [77], with regard to the Minister’s decision in that case, the Minister contends that his decision was primarily based upon the risk to the Australian community if Mr Huynh were permitted to remain in Australia, as evinced by [65]-[68] of his statement of reasons, and did not depend upon any fine distinction between the offence being “very serious” or “serious”. In this regard, the Minister notes the offence committed by Mr Huynh had a maximum penalty of life imprisonment, that Mr Huynh’s legal representative acknowledged the offence was “serious” in his submissions to the Minister dated 27 July 2015, and the following sentencing remarks of Jenkins J in The State of Western Australia v Huynh [2011] WASCSR 192 at [23]:

I consider your offence to be too serious not to impose a term of imprisonment. You do not have youth or good character on your side. The offence was serious. You were armed; you did cause bodily harm. For those reasons, I do think that your offence deserves a period of imprisonment but I am prepared to suspend that period of imprisonment.

68    Consequently, the Minister submits that his descriptions of Mr Huynh’s offence and offending being “viewed very seriously”, “serious”, having a “violent nature”, and being a “very serious crime” could not be said to be not open to him.

69    The Minister contends that, as in the case of Eden, the Minister’s findings concerning potential risk of harm to the Australian community, should Mr Huynh be permitted to remain in Australia, were open on the facts. Given the serious nature of his offence, the Minister’s view that the risk of harm was unacceptable was open on the facts, and could not be considered in any sense to be legally unreasonable, illogical or irrational. As in Eden, at [99], the Minister submits that his findings in this regard “provided an evident and intelligible justification for the cancellation decision”, even if it was not a decision with which everyone would necessarily agree.

70    The Minister submits that Mr Huynh’s written submissions impermissibly invite the Court to engage in merits review and suffer from the vice identified by the Full Court in Eden, at [59], of inviting the Court to substitute its own view as to how the decision should have been exercised or remaking the decision according to its own view of reasonableness. The Minister further submits that this invitation is made without due regard to all relevant facts as Mr Huynh’s submissions do not address the fact that he had been previously warned that further offending could lead to the cancellation of his visa and that he had his visa cancelled, before being granted another visa – facts which the Minister alleges were relevant to the exercise of his discretion and were taken into account by him.

71    With regard to Mr Huynh’s submission that there was no evidence to suggest there was any risk of Mr Huynh engaging in the conduct for which he was convicted on 5 December 2011, and there was no logical basis for the Minister concluding there was any potential for substantial harm from future offending, the Minister submits that is not how Mr Huynh put his position to the Minister before the cancellation decision was made. He refers to the submissions of Mr Huynh’s legal representative to the Minister dated 27 July 2015, which acknowledged there was a “very low likelihood of [Mr Huynh] engaging in further criminal or other serious misconduct”, and said that although there was a “risk that [Mr Huynh] will commit further offences, given his criminal history, it is submitted that this is effectively minimal” because of the time that had elapsed since his last offending and the circumstances in which that offence was committed. In circumstances where Mr Huynh conceded there was a risk of him committing further offences, given his background, the Minister contends it cannot now be concluded that it was wholly illogical for the Minister to come to a similar conclusion.

72    The Minister further contends there was other evidence before him that Mr Huynh could reoffend in a similarly violent way, namely that:

(1)    Mr Huynh had been a drug addict over a lengthy period of time, during which he had committed many offences, some warranting imprisonment.

(2)    Mr Huynh had attempted and failed at rehabilitation in the past.

(3)    Mr Huynh had chosen to respond to the severe stress of his daughter’s death by again taking illicit drugs and then committing the offence of assault with intent to rob.

(4)    Mr Huynh had committed a serious offence against a vulnerable member of the community, being a disabled man.

(5)    The offence was committed despite the prior warning that further offending could lead to the cancellation of his visa – a significant incentive not to reoffend.

73    The Minister cites Wigney J’s description in Te Puke v Minister for Immigration and Border Protection (2015) 230 FCR 499 at [86]; [2015] FCA 398 of a finding by the Minister that, because Mr Te Puke had offended before, it could not be said that there was no risk of him reoffending, as “crude” but “not entirely illogical”. In all of Mr Huynh’s circumstances, the Minister submits it could not be decided that the Minister’s finding that there was a risk, albeit low, of future similar reoffending was illogical or irrational.

74    Further, the Minister contends that Mr Huynh’s submission that it was legally unreasonable for the Minister to conclude that the Australian community could be exposed to great harm should Mr Huynh reoffend in a similar manner, is untenable given the nature of the offence Mr Huynh committed.

75    The Minister also submits that the Court should not find his decision was legally unreasonable on the basis of an absence of proportionality and notes that a similar argument was rejected in Eden at [100]. He says the Court’s conclusion that “[i]t was, at the very least, reasonably open to the Minister to conclude that the cancellation of Mr Eden’s visa was necessary for the protection of the Australian community”, applies in this case – it was reasonably open to the Minister to conclude that the cancellation of Mr Huynh’s visa was necessary for the protection of the Australian community and, accordingly, his decision did not involve any absence of any proportionality.

76    The Minister says he could not rule out further offending by Mr Huynh and that the Australian community could be exposed to great harm if he reoffended in a “similar fashion”. Given these findings, and that a purpose of the cancellation power under s 501 of the Act is the protection of the Australian community, the Minister asserts that it could not be said that the exercise of the power exceeds what “on any view” is necessary for that purpose.

77    Finally, the Minister submits grounds 1 to 3 are not made out because his decision to cancel Mr Huynh’s visa was not legally unreasonable, was not an irrational decision, did not involve a disproportionate exercise of power and was not beyond power in the sense that it fell outside the range of possible lawful outcomes.

Discussion

78    In the result, I consider that the submissions made on behalf of the Minister should be accepted.

79    When one has close regard to the full terms of the Minister’s statement of reasons for cancellation of the visa, and gives it a fair reading, it is apparent that, while the Minister was presented with a difficult decision, he appreciated that and took into account all factors both in favour of not cancelling Mr Huynh’s visa as well as supporting the decision he ultimately made.

80    In that regard, he identified that Mr Huynh had a substantial criminal record, and particularly noted the most recent conviction and sentence of 5 December 2011 for armed assault with intent to rob.

81    He further noted that he had a discretion to cancel the visa, taking into account factors that weighed against and in favour of cancellation. He explicitly said he was mindful that Australia had a sovereign right to determine whether non-citizens who are of a character concern are allowed to remain in Australia.

82    In that regard, I note in passing that Griffiths J in Stretton emphasised the greater “policy” component to the discretion when exercised by the Minister personally, rather than a delegate.

83    The Minister also relevantly considered what he called the Government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens. That factor has been recognised as relevant to the exercise of the discretion in Moana, and confirmed in Stretton and Eden.

84    As to the particular criminal conduct concerned, the Minister regarded its nature and seriousness, and noted that an offence had been committed against a vulnerable member of the community. He, not unreasonably, considered that the relevant offence was viewed very seriously.

85    In particular, the Minister noted how Jenkins J in the Supreme Court had described the offending. In particular, he noted that Mr Huynh used a weapon to attempt to rob an obviously disabled man, causing injuries to the victim.

86    He also noted that Mr Huynh was sentenced to two years imprisonment wholly suspended for 12 months for this offence.

87    Again, the Minister noted that Mr Huynh received a sentence that was a further indication of the seriousness of the offending. His comments, at [14] of his reasons, that dispositions involving an incarceration of the offender are the last resort of the sentencing hierarchy and that he had considered the Court viewed the offending as serious, are both factually accurate. Below I have found that there was nothing misleading or irrelevant about these particular remarks and the Minister’s reliance on them, in the course of dismissing ground 4 of this application.

88    The Minister also, not irrelevantly, had regard to the frequency and cumulative effect of Mr Huynh’s total criminal history. He referred, again not irrelevantly, to a lengthy criminal record in New South Wales. The Minister noted that terms of imprisonment had been imposed in New South Wales.

89    Then the Minister also, again not irrelevantly and fairly, noted that Mr Huynh’s criminal record in Western Australia prior to December 2010 was “substantially for less serious and non-violent offences” and he expressly accepted that his general conduct improved during that time. He noted that Mr Huynh had not been convicted of any further offences since his conviction in December 2011.

90    Again, relevantly and fairly, and recognising one of Mr Huynh’s important contentions in this case, the Minister expressly observed that there was an approximately ten year gap when Mr Huynh had not committed serious or violent offences and that there was no conviction of a serious offence between 30 August 2000 and 5 December 2011. But the Minister said:

Nonetheless, I find that the violent nature of his conduct on 1 December 2010 represented an escalation in seriousness in his offending, given his prior criminal history consisted of mostly non-violent dishonesty and drug offences.

91    In relation to such an observation or finding, I consider that the reasonable minds of Ministerial decision-makers might differ, but it cannot be said that that statement falls into any of the categories meriting the description of legally unreasonable, outlined by Allsop CJ in Stretton above. The Minister, in my view, had a “genuinely free discretion”, as the plurality in Li called it, when characterising and evaluating the nature of the offending and its relative significance in this regard.

92    Similarly, in my view, the Minister had a genuinely free discretion when he came to consider the risk to the Australian community, as he did in his reasons.

93    In that part of his reasons, the Minister considered that Mr Huynh’s ability to remain free of drugs would have a significant influence on his likelihood of reoffending. The rationality of that statement cannot be doubted. He referred in that regard to some of the New South Wales offences and how drugs had played a role, including heroin usage.

94    The Minister further regarded what Jenkins J said in sentencing Mr Huynh for the offence of 1 December 2010, and noted, in particular, the tragic death of his young daughter and his financial state, which helped explain his relapse into heroin use. The Minister expressly accepted that Mr Huynh was in a severely distressed emotional state at the time of the offence.

95    The Minister also noted that Mr Huynh had provided references to the Supreme Court from a number of community organisations and the prison chaplain that led Jenkins J to regard his prospects of rehabilitation positively. He further noted that Mr Huynh had made positive steps toward rehabilitation.

96    Having regard to relevant information, he accepted that Mr Huynh was resolved to maintain his progress towards rehabilitation, continue with employment and support his family.

97    But the Minister – and again one must accept, in my view, that this question also falls into the area of the Minister’s genuinely free discretion – stated that he remained guarded about Mr Huynh’s future prospects of remaining free of drugs. He gave express consideration, however, to Mr Huynh’s general conduct in the community since the expiry of his suspended prison sentence on 4 December 2012.

98    The Minister referred to the fact that Mr Huynh had previously been warned about his criminal conduct following a decision not to deport him, which he acknowledged on 19 November 1998. The Minister also noted that he had considered Mr Huynh’s visa was cancelled on 19 December 2002 because of serious offending, although he was later, after four and a half years of not holding a visa, granted a fresh visa on 20 August 2007.

99    The Minister noted, as he reasonably was entitled to do, that Mr Huynh had been convicted since 20 August 2007 of further dishonesty and driving offences as well as the most recent offence of armed assault with intent to rob.

100    Ultimately, the Minister, having regard to the past criminal history, as well as recent events, found that Mr Huynh had disregarded opportunities to not commit further offences afforded to him by a prior departmental warning, and the grant of a permanent visa by the former Minister on 20 August 2007. This may be regarded by some as a harsh assessment by the Minister, considering the extenuating circumstances in which the 2010 offence occurred, but it cannot be said to be wrong.

101    The Minister also considered the various assessments as to likelihood of reoffending. He concluded that Mr Huynh continued to progress with efforts at rehabilitation and found “Mr Huynh to have a low likelihood of reoffending”.

102    But then the Minister added significantly that, if Mr Huynh did engage in further offending of a similar violent nature, it could result in physical harm to members of the Australian community. On the one hand, it may be said that this is a very easy thing to say, and has about it the ring of a verbal formulation to justify on predetermined outcomes. For how can a visa-holder disprove such an assessment? On the other hand, given all the relevant factual circumstances, how can it be said that such a consideration is not reasonably open to the Minister? It cannot be said that the Minister in making his decision did so on the basis that Mr Huynh would not reoffend in the future. To the extent that on behalf of Mr Huynh it is suggested, in his written submissions, that this application should be determined on the basis that there is no basis to a finding that Mr Huynh may reoffend in the future, that does not reflect the Minister’s finding. It also, as the Minister’s counsel has pointed out, is not the nature of the representation that was made on behalf of Mr Huynh to the Minister before the decision was made. At material times, the parties accepted that Mr Huynh had a low likelihood of reoffending.

103    In those circumstances, as the Full Court has observed in both Stretton and Eden, the formation of a view by the Minister that if a person in Mr Huynh’s position did engage in further offending of a similar violent nature, it could result in physical harm to members of the Australian community, was open to him. There is no suggestion that the Minister did not genuinely consider this concern and hold the view he expressed. Reasonable Ministerial minds might differ about whether or not the low likelihood of reoffending is low or very low, but it is not suggested that it is nil. In those circumstances, the significance of that factual finding or adoption of that discretionary consideration by the Minister in this case must be considered to fall within the area of his genuinely free discretion.

104    The Minister also gave express consideration to the best interests of the two minor children of Mr Huynh, his relationship with them, and the fact that he had indicated that his partner and their children would not accompany him to Vietnam in the event his visa were to be cancelled. The Minister accepted he had an ongoing and close relationship with his children and that he shared parental responsibilities with his de facto partner.

105    The Minister further said he was mindful of the expectations of the Australian community that non-citizens who commit serious crimes in Australia can, and should, have their visa cancelled.

106    He also recognised, on the other hand, that Mr Huynh had been part of the Australian community for many years since childhood, and that the Australian community would recognise that and afford him a higher level of tolerance. He added that the Australian community also expects non-citizens to obey Australian laws while in Australia and that Mr Huynh had breached this trust.

107    Thus, he found it was appropriate to cancel the visa held by such a person.

108    The Minister further expressly considered Australia’s non-refoulement obligations and Mr Huynh’s ties to Australia. He also had regard to the impediments that Mr Huynh would face if removed from Australia to his home country. In that regard, he noted his immediate family, including father, mother and siblings, continued to reside in Vietnam and that he visited them on two occasions while living in Australia.

109    The conclusion that the Minister thus reached, at [63]-[69] of his reasons, was, in my view, open to the Minister as the decision-maker under s 501(2) of the Act. The factors relevant to the exercise of that discretion were carefully and reasonably noted. The Minister purported to balance his consideration of the countervailing factors in favour of and against cancellation of the visa. As noted above, it was also open to the Minister in the exercise of his genuinely free discretion to take into account broader policy matters, including the expectations of the Australian community, as the Minister saw them.

110    Ultimately, the Minister was swayed by the fact that Mr Huynh had committed a very serious crime in recent times, that the Australian community could be exposed to great harm should he reoffend in a similar fashion, and that the Minister could not rule out that possibility.

111    Having noted the factors that might be said to outweigh cancellation of the visa, the Minister ultimately said he reached the decision to cancel the visa because Mr Huynh represented “an unacceptable risk of harm” to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.

112    While there is always a danger that an administrative decision-maker, including a Minister, may rely on tried and true formulations in giving reasons for decisions likely to be contentious, including those that have survived earlier judicial scrutiny, it is not alleged, and indeed on the materials before the Court cannot be said, that the Minister did not give genuine consideration to all relevant considerations in the balancing exercise required in this case.

113    These, as the Full Court in Stretton and Eden has recognised, are no doubt difficult matters of ministerial decision-making. By the Act, however, that decision-making has, on this instance, been entrusted to the Minister personally. As the authorities referred to above demonstrate, there is an area of genuinely free discretion of the Minister, on an occasion such as this. It is not demonstrated that the decision ultimately made by the Minister to cancel Mr Huynh’s visa is legally unreasonable. It may be considered by other persons as unfair and unreasonable in a broader humanitarian or policy context, but it cannot be said it was a decision not reasonably open to the Minister who exercised the discretion. This Court cannot conclude that the decision made fell outside the area of a genuinely free discretion such that it can be categorised as a legally unreasonable decision.

114    For these reasons, grounds 1 to 3 must fail.

Did the Minister take into account an irrelevant consideration?

115    With regard to ground 4, Mr Huynh submits that decision-makers who fail to consider relevant matters, or who consider some irrelevant matters, produce an outcome that is beyond power and that constitutes jurisdictional error. See Craig v The State of South Australia (1995) 184 CLR 163 at 179; [1995] HCA 58. About this principle, there is no doubt.

116    Mr Huynh notes the Minister’s reference, at [5] of his reasons, to Mr Huynh having been sentenced to “two years’ imprisonment”, and to the absence of a reference to that sentence being suspended. Mr Huynh further notes that although the Minister referred to the sentence being suspended at [13], he went on to find, at [14], that the sentence was “a further indication of the seriousness of the offending” and that “[d]ispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered that the court viewed the offending as serious”.

117    Mr Huynh submits that this description reveals a misunderstanding of the nature of the sentence imposed. Consequently, he submits that it amounted to the taking into account of an irrelevant consideration by the Minister – that being a view of the sentence which was not correct – and this must have affected his final conclusion.

118    The Minister contends that [14] of his reasons does not demonstrate any jurisdictional error. He says the reasons are not to be viewed over zealously with an eye keenly attuned to the perception of error. See Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6.

119    The Minister submits that [14] of his reasons does not contain any error: Mr Huynh’s sentence was an indication of the seriousness of the offending. He cites Jenkin J’s statement on sentencing in December 2011, that her Honour considered the offence too serious to warrant anything other than a custodial sentence, and reiterates his statement that dispositions involving incarceration are the last resort in the sentencing hierarchy and Jenkins J did view the offending as serious.

120    Further, the Minister states it is apparent from the preceding paragraph [13] of his reasons, that he was aware of, and took into account, that Mr Huynh’s sentence of two years’ imprisonment had been wholly suspended. He notes that, at [63], he said he had considered all the relevant evidence before him, which included the sentencing remarks of Jenkins J, the Department’s issues paper, which explained that the sentence was wholly suspended, and the submissions of Mr Huynh’s legal representative dated 27 July 2015, which made the same point. Further, he said he had considered, in the sense of took into account, that Mr Huynh was “subject to… a two year prison sentence suspended for 12 months”, at [26]. Consequently, the Minister submits that any suggestion that he acted on the basis that the sentence had not been suspended, or that he did not understand there was a difference between an immediate and suspended sentence of imprisonment, cannot be sustained.

121    Moreover, the Minister submits that a sentence of imprisonment that is fully suspended is nevertheless a sentence of imprisonment and is regarded as a “very serious form of punishment”. See Eden at [73], citing Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 at [4] (Rares J), [1] (Moore J agreeing); [2010] FCAFC 33. While a suspended prison sentence may more correctly be treated as “the penultimate punishment in the hierarchy of sentencing options provided”, it is only “just slightly lower in severity than the imposition of imprisonment to be immediately served”. See Eden at [73], citing Dinsdale v The Queen (2000) 202 CLR 321 at [77] (Kirby J); [2000] HCA 54; Regina v Zamagias [2002] NSWCCA 17 at [22]-[31] (Howie J), [1] (Hodgson JA agreeing), [2] (Levine J agreeing).

122    The Minister contends that his conclusion, at [64], that the crime committed was “very serious” did not depend on any mistaken understanding that the sentence imposed on Mr Huynh was not suspended, and that his statement of reasons as a whole demonstrates there was no such mistake. As in Eden, the Minister contends the finding that a very serious offence had been committed was clearly open.

123    As quoted in Eden at [24], the Minister in that case, in the course of his reasons for cancelling Mr Eden’s visa, said:

Whilst the custodial sentence of 12 months imprisonment may be at the lower end of the sentencing scale for such offences as argued by Mr EDEN's representative, I consider that a disposition of any period of imprisonment is the last resort in the hierarchy of penalties available and the penalty imposed in Mr EDEN's case is indicative of the seriousness of his offending.

The Minister notes this reasoning did not attract any critical comment by the Full Court despite its observation, at [73], that a suspended sentence of imprisonment is the penultimate punishment in the hierarchy of punishments.

124    The Minister submits that ground 4 also cannot be established as Mr Huynh has not identified what the relevant consideration was which the Minister failed to take into account, or the irrelevant consideration which was wrongly taken into account. He notes that relevant considerations, in an administrative law sense, refer to those factors that the statute expressly or impliedly mandated the decision-maker to take into account in the exercise of the power; here, the Minister says, he took into account, as required, the implied relevant considerations of the protection of the Australian community and the risk of harm posed by the continued presence of Mr Huynh in Australia. See Eden at [17].

125    Therefore, even if his reasons at [14] are construed to mean he wrongly described the sentence imposed on Mr Huynh as that of the “last resort”, the Minister submits this did not involve any failure to take into account a relevant consideration, or the taking into account of an irrelevant consideration. He says he appropriately took into account the nature and seriousness of the offence committed as bearing upon the protection of the community and the risk of harm posed by the non-cancellation of Mr Huynh’s visa.

126    Finally, the Minister submits ground 4 is not made out as his decision did not involve jurisdictional error by reason of taking into account an irrelevant consideration or failing to take into account a relevant consideration.

127    In my view, as I have said in passing in relation to the legally unreasonable grounds above, it is not reasonably open to conclude that the Minister took into account an irrelevant consideration. He plainly did understand that a sentence of imprisonment was wholly suspended. He said so in his reasons and he repeated that during the course of his consideration as to Mr Huynh’s prospects of rehabilitation following the expiration of that period of suspended sentence.

128    The statements made by the Minister concerning a sentence of imprisonment being a last resort were factually correct. Reading his reasons as a whole, it is plain that the Minister, not unreasonably, considered that the offence of which Mr Huynh was convicted in 2011 was of a very serious nature. The fact that Jenkins J, in sentencing him, imposed a sentence of imprisonment but wholly suspended it, justifies the Minister’s statements in his reasons.

129    It cannot, in these circumstances, be said that the Minister, as contended for Mr Huynh, took into account an irrelevant consideration. I need not therefore rule on the other contentions advanced by the Minister.

130    For these reasons, ground 4 must fail.

Conclusion and orders

131    For the reasons given above, the application should be dismissed with costs.

Associate:

Dated:    13 April 2016