FEDERAL COURT OF AUSTRALIA

Renzullo v Assistant Minister for Immigration and Border Protection [2016] FCA 412

1.    The application for an extension of time within which to make an application to the Court for review of the Assistant Minister's decision is refused.

2.    The applicant pay the costs of the 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

MCKERRACHER J:

THE APPLICATION

1    Mr Renzullo applies for review of the Decision of the Assistant Minister to cancel his visa under s 501(2) of the Migration Act 1958 (Cth). The effect of the cancellation is that he will be removed from Australia. As Mr Renzullo sought to file his appeal out of time, an application for an extension of time is also pursued. The application for an extension of time and the application for final relief were heard together.

2    Mr Renzullo argues that, since there is no evidence of any prejudice if an extension of time is granted, the primary issue is whether the grounds of review are sufficiently arguable to justify an extension of time.

3    The grounds of jurisdictional error Mr Renzullo advances are that the Decision was:

(a)    so unreasonable that no decision-maker acting reasonably could have made it;

(b)    so illogical or irrational or both that no rational or logical decision-maker could have made it; and/or

(c)    so disproportionate an exercise of the power under s 501(2) of the Act that the decision was irrational and unreasonable.

4    In support of his application, Mr Renzullo stresses his close ties to Australia, the absence of ties to Italy, the hardship that would be experienced by him, his parents and the family members as a result of cancellation of the visa, and the positive steps he has taken to avoid the risk of re-offending.

EVENTS LEADING TO THE APPLICATION

5    By two relatively succinct affidavits Mr Renzullo deposes to the fact that on 2 December 2014 he was due to be released from prison on parole, but, on that date, was visited in prison from officers of the Department of Immigration and Border Protection and handed a letter which (he now understands) notified him of the Decision to cancel his visa following conviction of criminal charges. The officers briefly explained the contents of the letter. But, Mr Renzullo deposes (and I accept) that at that stage he did not understand it as he struggles generally with reading and comprehension and has done so since school. He explained that there were a number of other prisoners who had received similar letters. Discussions amongst the prisoners were to the effect that they could be transferred to immigration detention for a month or so and then released with a warning. He was moved from prison to immigration detention and spoke to someone at the Administrative Appeals Tribunal (AAT) about filing an application for review of the Decision. He was informed that he could not lodge a review with the AAT, but, rather, that he would need to go through the ‘courts’ and to find a lawyer to represent him. He explained that he did not have any money to pay for a lawyer and the AAT officer told him to find a pro bono lawyer. He did not understand what that expression meant or how to find a pro bono lawyer. His previous dealings with lawyers had been in relation to criminal matters and they were appointed through the Legal Aid scheme on his behalf.

6    Mr Renzullo subsequently contacted his father and sought assistance in finding a lawyer. He first contacted his solicitor in late April 2015. On 28 April 2015, the solicitor was informed by an officer in the National Character Consideration Centre of the Department that his visa was cancelled by the Assistant Minister on 2 December 2014.

7    The solicitor first visited Mr Renzullo at the Perth Immigration Detention Centre on 22 May 2015. (As a sole practitioner, other priority work commitments prevented him from conducting an earlier visit.) The solicitor generously agreed to act for Mr Renzullo on a pro bono basis. On 9 June 2015, the solicitor lodged a further information request seeking copies of the Department’s records relating to the Decision. On 12 June 2015, the solicitor received some papers relating to the Decision. Then, on 16 June 2015, the solicitor sought assistance from the Western Australian Bar Association. Senior counsel who appeared on behalf of Mr Renzullo, Ms Patricia Cahill SC, later conveyed a message to the solicitor that she would accept a pro bono brief in the matter, assisted by Mr Eric Heenan, as junior counsel. On 1 July 2015, they conferred.

8    On 21 July 2015, the solicitor received a copy of some of the Department’s documents relating to the Decision in answer to his freedom of information request. The documents released essentially comprise the Department’s submission to the Assistant Minister, and an issues paper provided to the Assistant Minister with numerous attachments, including:

    a notice of intention to consider cancellation of Mr Renzullo’s visa dated 29 August 2014;

    Ministerial Direction No 55 dated 28 July 2014;

    Prisoner (Immigration) Report of 14 September 2005;

    Prisoner (Immigration) Report of 5 July 2013;

    sentencing remarks of the District Court of Western Australia of 14 June 2013;

    sentencing remarks of the District Court of Western Australia of 23 May 2011;

    sentencing remarks of the District Court of Western Australia of 21 March 2005;

    a covering letter and submissions from Gunning Young, Barristers & Solicitors sent on behalf of Mr Renzullo in relation to the prospective cancellation of his visa dated 16 June 2006;

    a warning about possible future liability under s 501 of the Act if Mr Renzullo was convicted of any further criminal offences dated 30 August 2006 and signed by Mr Renzullo on 4 September 2006;

    acknowledgment of notice under s 501 of the Act and authority to release personal information consented to by Mr Renzullo dated 1 October 2014;

    National Police Certificate dated 12 September 2014;

    a letter from the Department to Mr Renzullo concerning further information received by the Department relevant to the possible visa cancellation dated 20 October 2014;

    a record of interview with Mr Renzullo dated 22 October 2014;

    a file note dated 23 October 2014;

    a letter from the Department to Mr Renzullo in relation to further information received by the Department regarding the possible cancellation of Mr Renzullo’s visa dated 23 October 2014; and

    an email from the sister of Mr Renzullo to the Department dated 28 October 2014.

9    Also in evidence before me in this proceeding were:

    Statement of Reasons for the Decision dated 2 December 2014;

    a letter from the Department to Mr Renzullo giving notice of the visa cancellation dated 3 December 2014;

    Detention Client Interview Pt A dated 10 December 2014;

    internal email correspondence of the Department dated 15 December 2014;

    Mr Renzullo’s application to the AAT for review of the Decision dated 23 December 2014 (but stamped as received by the AAT on 31 December 2014);

    Order of Deputy President S D Hotop dated 8 January 2015;

    a request for removal from Australia form signed by Mr Renzullo and dated 10 February 2015;

    Detention Client Interview Pt B dated 10 February 2015;

    Notice of Intention to Remove from Australia, itinerary and notice in respect of removal costs dated 24 February 2015; and

    a letter from Putt Legal to Mr Renzullo regarding pro bono assistance dated 28 April 2015.

EARLIER HISTORY

10    Mr Renzullo, at the time of giving evidence, was aged 48, having been born in Switzerland on 31 October 1967. He arrived with his family in Australia at the age of three on 14 September 1970 and was granted permanent residency. He has remained in Australia since that time. On 1 September 1994, Mr Renzullo was deemed to hold a Class BF transitional (permanent) visa pursuant to the Migration Reform (Transitional Provisions) Regulations 1994 (Cth). The effect of this visa was to allow Mr Renzullo to remain in Australia indefinitely.

11    The Decision was based upon Mr Renzullo’s character, as indicated by his criminal history. Mr Renzullo has convictions and sentences for the following offences:

    on 20 July 1989, Mr Renzullo was convicted of robbery whilst armed in company and was sentenced to six years and two months imprisonment;

    on 21 March 2005, Mr Renzullo was convicted after trial of six counts of indecently dealing with a child between the ages of 13 and 16 (his stepdaughter). On his plea of guilty, he was also convicted of two counts of threats to cause harm and a threat to kill against his former stepson and ex-wife. For the sexual offences, Mr Renzullo received five sentences of two years imprisonment and one sentence of one year imprisonment to be served concurrently. In addition, Mr Renzullo also received two sentences of eight months imprisonment for his threats to harm and kill to be served concurrently, but cumulatively to the two year terms (21 March 2005 convictions);

    on 23 May 2011, Mr Renzullo was convicted of aggravated burglary and sentenced to 12 months imprisonment. This sentence was suspended for 18 months;

    on 14 June 2013, Mr Renzullo was convicted of two counts of manufacturing a prohibited drug (methylamphetamine). He was sentenced to 18 months imprisonment on each count to be served concurrently. Those offences were committed on or around June and July 2012 and thereby breached the suspended imprisonment order of 23 May 2011 made in relation to the aggravated burglary conviction. As a result, Mr Renzullo was also sentenced to a cumulative sentence of 12 months imprisonment for the aggravated burglary conviction; and

    on 22 November 2013, Mr Renzullo was convicted of a further count of manufacturing a prohibited drug and sentenced to 7 months imprisonment, which was to be served cumulatively.

12    Prior to the Decision, by a warning letter dated 30 August 2006 from the Department, Mr Renzullo was informed that he had become liable for cancellation of his permanent residence visa pursuant to s 501 of the Act, but that the Delegate for the Minister for Immigration and Multicultural Affairs had decided not to have his visa cancelled because of his 21 March 2005 convictions. However, he was warned that a further criminal conviction would lead to reconsideration of the cancellation of his visa and disregard of the warning would weigh heavily against him if his case was reconsidered.

13    It is to be noted that approximately six years after the warning was given, Mr Renzullo was convicted of aggravated burglary. Two years after this he was convicted of manufacturing methylamphetamine and, less than six months later, convicted of a further count of manufacturing a prohibited drug (methylamphetamine).

THE DECISION AND ANTECEDENT EVENTS

14    On 29 August 2014, the Department sent Mr Renzullo a Notice of Intention to Consider Cancellation of his visa under s 501(2) of the Act. Mr Renzullo responded with a written submission, which was received by the Department on 1 October 2014. On 20 October 2014, the Department wrote to him advising that, since sending him the Notice, the Department had received a National Police Certificate upon which comment was invited.

15    0n 22 October 2014, Mr Renzullo was interviewed by an officer of the Department by telephone. The following day, 23 October 2014, a Department officer also conducted a telephone discussion with Mr Renzullo’s sister and father (with the assistance of an interpreter). On the same day, the Department sent a letter to Mr Renzullo providing him information in relation to his interview and the file note dated 23 October 2014 recording the information provided by his sister and father and inviting his comment on that information. Five days later, Mr Renzullo’s sister sent an email to the Department providing some additional information in relation to Mr Renzullo. A little under a month later, on 24 November 2014, an officer of the Department prepared a submission to the Assistant Minister for her consideration of whether or not to use her power under s 501(2) of the Act to cancel Mr Renzullo’s visa.

16    Shortly after this, on 2 December 2014, the Assistant Minister made the Decision. That is, she exercised her power under s 501(2) of the Act to cancel Mr Renzullo’s visa and signed a statement of reasons for the Decision. Mr Renzullo was advised of the Decision by letter sent by registered post from the Department the following day.

STATUTORY PROVISIONS

17    The key provision in the Act for present purposes is s 501. As in force at the time of the Decision, s 501 relevantly provided:

501    Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

…

(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.

…

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)); or

(aa)    the person has been convicted of an offence that was committed:

(i)    while the person was in immigration detention; or

(ii)    during an escape by the person from immigration detention; or

(iii)    after the person escaped from immigration detention but before the person was taken into immigration detention again; or

(ab)    the person has been convicted of an offence against section 197A; or

(b)    the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct: or

(c)    having regard to either or both of the following:

(i)    the person’s past and present criminal conduct;

(ii)    the person’s past and present general conduct;

the person is not of good character; or

(d)    in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

(i)    engage in criminal conduct in Australia; or

(ii)    harass, molest, intimidate or stalk another person in Australia; or

(iii)    vilify a segment of the Australian community.

(iv)    incite discord in the Australian community or in a segment of that community; or

(v)    represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

Otherwise, the person passes the character test.

Substantial criminal record

(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 of 12 months or more; or

(d)    the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasion), where the total of those terms is 2 years or more …

…

(12)    In this section:

court includes a court martial or similar military tribunal.

imprisonment includes any form of punitive detention in a facility or institution.

sentence includes any form of determination of the punishment for an offence.

THE MINISTER’S POWER UNDER SECTION 501 OF the ACT

18    By s 501(2) of the Act, the Minister may cancel a visa that has been granted to a person if:

(1)    the Minister reasonably suspects that the person does not pass the ‘character test’; and

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

19    Section 501(6)(a) relevantly provides that a person does not pass the ‘character test’ if he or she has a ‘substantial criminal record’, as defined by s 501(7). The definition of ‘substantial criminal record’ relevantly includes circumstances where the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).

20    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. It is not entirely at large as considerations relevant to the exercise of the power depend on the nature, scope and purpose of the power, understood in the context of the Act: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 per Heydon and Crennan JJ (at [126]-[128]) and Gleeson CJ agreeing (at [1]). The Minister must have regard to and consider the consequences for the person of the cancellation of his or her visa: NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44 per Buchanan J (at [118], [121], [125]).

JURISDICTION OF THE cOURT

21    By s 476A(1)(c) of the Act, this Court has jurisdiction in relation to a ‘migration decision’ if the decision is an actual purported ‘privative clause decision’ made personally by the Minister under s 501 of the Act. A decision ‘ made personally by the Minister’ includes, by reason of s 19(4) the Acts Interpretation Act 1991 (Cth), a decision made by any other minister for the time being acting for or on behalf of the Minister. Under s 5 of the Act, a migration decision includes a privative clause decision. A ‘privative clause decision’ is in turn defined by s 474(2) of the Act to include, relevantly, ‘a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under [the] Act … whether in the exercise of a discretion or not …’.

22    Section 477A(1) of the Act provides that any application to this Court for relief under s 476A(1)(c) must be made within 35 days of the date of the decision. In this case, Mr Renzullo was well out of time. There is provision for an extension of time to be granted pursuant to s 477A(2) of the Act if an application is made to the Court specifying why an order for an extension of time is necessary in the interests of the administration of justice and the Court is satisfied that it is necessary in the administration of justice to make the order (see further r 31.23(1) of the Federal Court Rules 2011 (Cth)).

23    In AZF15 v Minister for Immigration and Border Protection [2016] FCA 373, Flick J relevantly said (at [7]) in relation to the power of the Court to grant an extension of time:

Notwithstanding the prescription in r 36.03 for the time within which an appeal is to be filed, there remains a discretionary power to extend that time. In Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 426 Tracey J said in respect to the discretion to extend time:

[12] … The Court has an unfettered discretion to grant or refuse such an application. That discretion must, of course, be exercised judicially. This requires a balancing of potentially conflicting interests and regard to the peculiar circumstances of each case. The starting point in any given case is that the relevant legislation or rules have prescribed a period within which an appeal must be lodged. Such prescription serves the public purpose of bringing disputes to finality. There is, therefore, what has been described as a prima facie rule that applications or appeals brought out of time will not be entertained: cf Lucic v Nolan (1982) 45 ALR 411 at 416. It is, therefore, necessary for an applicant who seeks an extension of time to advance some plausible reasons which explain the delay in commencing the appeal and provide a foundation for the conclusion that it is in the interests of justice that an extension be granted: cf Duff v Freijah (1982) 62 FLR 280 at 285. One factor which may carry significant weight in determining where the justice of a case lies is the merits of any proposed appeal: cf Lucic at 417. Where an extension of time is sought in order to lodge a notice of appeal, it is to be borne in mind that “the respondent to the application has a vested right to retain the judgment, the subject of the appeal”: see Jackamarra v Krakourer (1998) 195 CLR 516 at 519-20 (Brennan CJ and McHugh J). In assessing the merits of a potential appeal the Court is not required to examine a case in great detail. A “full rehearsal” of the argument on appeal is not required. Any assessment of “the merits” must necessarily be undertaken “in a fairly rough and ready way”: see Jackamarra at 522. See also: Jess v Scott (1986) 12 FCR 187 at 191-2 and the authorities therein referred to.

Even where the period of time for which the extension is sought may be short and even where a respondent suffers no prejudice, an extension may be refused: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 at [37] to [39], (2001) 117 FCR 424 at 439 to 440 per Allsop J (as his Honour then was, with whom Drummond and Mansfield JJ agreed); SZSLM v Minister for Immigration and Border Protection [2015] FCAFC 164 at [36] per Rares, Flick and Griffiths JJ. An extension of time may also be granted but the appeal itself may be dismissed: e.g., AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193.

24    The jurisdiction of the Court under s 476A(1)(c) to judicially review the Decision of the Assistant Minister (in this case) is the same as the jurisdiction of the High Court of Australia under s 75(v) of the Constitution: s 476A(2) of the Act. Therefore, the application can only succeed if the Minister’s decision was tainted by jurisdictional error: WASB v Minister for Immigration and Citizenship (2013) 217 FCR 292 per Barker J (at [13]).

THE REASONING

25    Although it involves a little repetition, it is convenient and appropriate to set out the statement of reasons and the Decision in full, which were as follows:

STATEMENT OF REASONS FOR CANCELLATION OF VISA UNDER SUBSECTION 501(2) OF THE MIGRATION ACT 1958

Mr Dino RENZULLO        (dob: 31 October 1967)

1.    This statement relates to the Class BF transitional (permanent) visa held by Mr RENZULLO at the time of my decision.

2.    As a result of my decision, any other visas held by Mr RENZULLO will be cancelled by operation of law, pursuant to subsection 501F(3) of the Act.

3.    Also, any other visa applied for by Mr RENZULLO will be refused by operation of law, pursuant to subsection 501F(2) of the Act.

4.    Subsection 501(2) 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 14 June 2013, Mr RENZULLO was convicted in the District Court of Western Australia of two counts of manufacture [sic] methylamphetamine for which he was sentenced to 18 months imprisonment on each count.

6.    As a result of these sentences of imprisonment, Mr RENZULLO has a substantial criminal record. I find that he does not pass the character test by virtue of subsection 501(6)(a) with reference to subsection 501(7)(c) of the Act and that he has not satisfied me that he passes the character test.

DISCRETION

7.    Having found that Mr RENZULLO 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 RENZULLO’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.    In addition to the drug offences noted above, Mr RENZULLO also has convictions for both violent and sexual offences. In 2005 he was convicted of six counts of indecently dealing with a child between the ages of 13 and 16 years. The victim of the offending was Mr RENZULLO's stepdaughter and she was 13 and 14 years of age at the time of the offending. The offending involved Mr RENZULLO touching his stepdaughter in a sexual manner and rubbing himself against her. I regard this offending as very serious.

9.    I note that the victim of Mr RENZULLO's sexual offending was a minor child and his stepdaughter. Minors are vulnerable members of the community and Mr RENZULLO's offending in this manner also involved a breached of trust given the parental relationship between him and his stepdaughter at the time. In my view, these factors add to the seriousness of Mr RENZULLO's offending.

10.    Mr RENZULLO also subsequently threatened to shoot the victim's 17 year old brother and to kill her mother, Mr RENZULLO's ex-wife. Mr RENZULLO was convicted of threatening to harm and threatening to kill. His threats had a significant impact on the victims and other family members. I regard this offending as very serious. Again, one of the victims of Mr RENZULLO's offending was a minor child which in my view adds to the seriousness of the offending.

11.    The sentences Mr RENZULLO received are a further indication of the seriousness of his offending. On 2 March 2005, Mr RENZULLO received five sentences of two years imprisonment and one of one year imprisonment for his sexual offending. He also received two sentences of eight months imprisonment for his threats to harm and kill. In 2013 Mr RENZULLO was sentenced to 18 months imprisonment on each of two counts of manufacturing methylamphetamine and required to serve a sentence of 12 months imprisonment for aggravated burglary which had on 23 May 2011 been suspended. In 1989, Mr RENZULLO was convicted of armed robbery in company and sentenced to six years and two months imprisonment. I regard these sentences as significant and a further indication of the seriousness of Mr RENZULLO's offending.

12.    Mr RENZULLO has a significant criminal history which includes offending as a juvenile. As an adult, in addition to his more serious sexual, violence-related and robbery offences, Mr RENZULLO has convictions of many other less serious property, dishonesty, driving and drug related offences. These include two convictions for exceeding 0.08 percent blood alcohol in 1986 and 1996, and one for careless driving in 1988. While these driving convictions are not recent, I consider they are serious as they endangered the community.

13.    I consider that the cost to the community of Mr RENZULLO's offending has been significant. 1 find that the cumulative effect of his repeat offending, when viewed in totality, amounts to serious offending against the Australian community.

Mitigating factors and risk of re-offending

14.    The available evidence indicates that Mr RENZULLO came to the attention of community services as a young child due to a behavioural problem. He left home at a young age and became involved with older associates who were an adverse influence on him. He developed substance abuse problems, in relation to both illegal drugs and alcohol. Much of his later offending relates to his substance abuse.

15.    Mr RENZULLO denied his sexual offending and as a result was considered unsuitable to undertake sex offender treatment in 2005. He also refused to attend supportive counselling at the time.

16.    In 2011 the court noted that Mr RENZULLO completed a previous period of parole without further offending and that his offending has decreased in frequency when compared to his teens and early twenties. The judge was of the view that apart from Mr RENZULLO's 2005 convictions which arose out of circumstances relating to the breakdown of his marriage, Mr RENZULLO appeared to have substantially overcome the serious offending of his youth.

17.    The judge noted the influence of alcohol, bad temper and sometimes violent reactions in times of emotional stress. The judge was of the view that Mr RENZULLO needed to address anger management and control issues.

18.    In 2013 the court noted that Mr RENZULLO committed his most recent drug offences while on a suspended sentence during which he had responded positively to supervision and program requirements. Mr RENZULLO had undertaken psychological counselling and substance abuse counselling, while being involved in the manufacture and use of illegal drugs.

19.    A prison conduct report for Mr RENZULLO dated 2005 indicates he had one internal offence for being in possession of a drug which had not been lawfully issued to him. The report was otherwise positive about his behaviour and employment in prison. The report indicated that he was booked to complete programmes in relation to cognitive skills, preventing and managing relapse or drug awareness, and building better relationships and addressing domestic violence.

20.    A prison conduct report in relation to his current incarceration was also positive about Mr RENZULLO's behaviour and he had no internal breaches at the time the report was prepared in July 2013. He had very positive reports about his employment in prison and was scheduled to undertake a cognitive skills programme in addition to a high intensity substance abuse programme. Mr RENZULLO has advised that he completed these programmes and I have taken this into account.

21.    Mr RENZULLO plans to live with his parents upon his release. This will remove him from past associates and ties to his previous life. He has advised that he will utilise the support available to him while on parole and can go into drug rehabilitation if necessary. Mr RENZULLO believes he has curbed his offending in recent years. For these reasons he is optimistic about his rehabilitation prospects.

22.    Mr RENZULLO has supportive family members in Australia.

23    Mr RENZULLO was warned in 2006 about the possible consequences if convicted of further crimes. Despite this warning, Mr RENZULLO went on to commit further offences.

24.    I find that Mr RENZULLO's criminal history is substantially related to substance abuse. I also find that despite past programme attendance, Mr RENZULLO has continued to re­offend and there remains a risk that he will do so again. Should Mr RENZULLO re-offend in a similar manner, particularly with crimes involving sexual offending against children or threats of violence, I am of the view that it could result in physical or psychological harm to the victims, and that this harm has the potential to be substantial.

Ties to Australia

25.    Mr RENZULLO was two years of age when he began living in Australia on 14 September 1970. I find that Mr RENZULLO arrived in Australia as a very young child and has spent his formative years in Australia. The first offences recorded on Mr RENZULLO's National Police Certificate are 15 years after his arrival in Australia when he was 18 years of age, however the available information indicates that he also has a juvenile criminal record. Mr RENZULLO has now lived in Australia for over 44 years and I find that he has spent the majority of his life in Australia.

26.    Mr RENZULLO has advised that his parents, two siblings and adult daughter live in Australia, in addition to two uncles or aunts, two nephews and two cousins. He has a strong employment record in Australia. I find that Mr RENZULLO has strong family and social ties to the Australian community and that he has made some contribution to the community through employment.

Best Interests of Minor Children

27.    The information available does not indicate that there are any minor children in Australia whose best interests would be affected by the cancellation of Mr RENZULLO's visa.

Non-refoulement Obligations

28.    Mr RENZULLO has not made any claims which require assessment in relation to Australia's international non-refoulement obligations, nor does the other available evidence indicate that such an assessment is appropriate in this case.

Other Considerations

29.    Mr RENZULLO has his parents and two siblings and a daughter in Australia, in addition to more distant relatives. He has advised that he is close to all of his immediate family members.

30.    Mr RENZULLO's mother suffers from dementia and his father suffers from high blood pressure, depression, anxiety and heart problems, in addition to being stressed as a result of his wife's condition. Mr RENZULLO intends to live with his parents after his release and help his father care for his mother. Mr and Mrs Renzullo currently utilise carers to provide help in the care of Mr RENZULLO's mother. Mr RENZULLO's parents will be unable to travel to Italy to visit him. I find that cancellation of Mr RENZULLO's visa will result in emotional and practical hardship for his parents, and could result in a further deterioration in his parents' health.

31.    Mr RENZULLO's sister also advised that cancellation of his visa will cause her significant distress. Mr RENZULLO also has a 20 year old daughter and brother in Australia. He has advised that he is close to all of his immediate family members, and has regular contact with them. I find that visa cancellation will cause these family members emotional distress. I also find that visa cancellation may have practical implications for them, as they may be required to provide additional support to his parents in the future in the absence of Mr RENZULLO.

32.    Mr RENZULLO has advised that he has no family members in Italy who can provide him with support. Additionally he does not speak Italian, only a form of dialect, and that removal to Italy will be very difficult for him. Mr RENZULLO has now lived in Australia for 44 years and was educated entirely in Australia. I find that visa cancellation will involve considerable hardship for Mr RENZULLO, particularly given the absence of support he has in Italy, his limited Italian language and the 45 years he has spent living in Australia.

33.    Mr RENZULLO is 47 years of age and has advised that he is asthmatic, has a bad back and a shoulder injury, and is currently on the methadone program. Treatment for these conditions is available in Italy. I find that Mr RENZULLO's health problems and limited Italian language skills may make it difficult for him to find any employment in Italy and will consequently increase the hardship he will experience in that country.

CONCLUSION

34.    I considered all relevant matters including (1) an assessment against the character test as defined by subsection 501(6) of the Migration Act 1958, and (2) all other evidence available to me, including evidence provided by, or on behalf of Mr RENZULLO.

35.    In reaching my decision I concluded that Mr RENZULLO represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above. These countervailing considerations include his long residence in Australia since the age of two, the impact of visa cancellation on his family in Australia, particularly his parents, his contribution to the community through employment, and the hardship he will experience on removal to Italy.

36.    I also find that the Australian community could be exposed to great harm should Mr RENZULLO reoffend again in a similar fashion, particularly in relation to child sex offences or crimes of violence. I could not rule out the possibility of further offending by Mr RENZULLO. The Australian community should not tolerate any further risk of harm. I found these factors outweighed any countervailing considerations in Mr RENZULLO's case.

35.    Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Mr RENZULLO’s Class BF transitional (permanent) visa under subsection 501(2).

…

26    In summary, on the basis of the materials on which the Assistant Minister was briefed, she concluded that:

    Mr Renzullo’s criminal history was substantially related to substance abuse, but despite past programme attendance he had continued to reoffend and there remains a risk that he would reoffend;

    should Mr Renzullo reoffend in a similar manner, particularly with crimes involving sexual offending against children or threats of violence, it could result in physical or psychological harm to the victims and this harm has the potential to be substantial;

    Mr Renzullo arrived in Australia as a very young child and spent his formative years in Australia. He has spent the majority of his life in Australia, being 44 years at the time of the Decision. His first offences were 15 years after his arrival;

    Mr Renzullo has strong family and social ties to the Australian community and has made some contribution to the community through employment;

    cancellation of Mr Renzullo’s visa would result in emotional and practical hardship for his parents and could result in further deterioration in their health;

    visa cancellation would also cause other family members emotional distress and may have practical implications for them, as they may be required to provide additional support to Mr Renzullo’s parents in his absence;

    visa cancellation would involve considerable hardship for Mr Renzullo, particularly given the absence of support he has in Italy, his limited knowledge of the Italian language and the substantial period of time he has spent living in Australia; and

    Mr Renzullo’s health problems and limited Italian language skills may make it difficult for him to find any employment in Italy, and would consequently increase the hardship he would experience in that country.

27    The Assistant Minister recorded several factors adverse to the exercise of the discretion to cancel the visa (including Mr Renzullo’s long residence in Australia since the age of two, the impact of visa cancellation on his family in Australia, particularly his parents, Mr Renzullo’s contribution to the community through employment and the hardship he will experience on removal to Italy). Notwithstanding such factors, the Assistant Minister concluded that Mr Renzullo represented an unacceptable risk of harm to the Australian community, and the protection of the Australian community outweighed any countervailing considerations. The Assistant Minister concluded that the Australian community could be ‘exposed to great harm should Mr Renzullo reoffend again in a similar fashion, particularly in relation to child sex offences or crimes of violence’. She could not rule out the possibility of further offending and that the Australian community should not tolerate any further risk of harm.

EXTENSION OF TIME APPLICATION

28    The application for an extension of time to lodge an application for a review of the Decision was not filed until almost seven months out of time, or, as the Minister says, 209 days more than the 35 day period permitted by the Act. The grounds of the application for an extension of time advanced for Mr Renzullo are that it is necessary in the interest of the administration of justice for the Court to grant an extension of time under s 477A(2) of the Act because:

(1)    the application for review is sufficiently arguable to justify an extension of time;

(2)    there is no evident prejudice to the Assistant Minister if the extension of time is granted;

(3)    there is a reasonable and adequate explanation for Mr Renzullo’s delay in filing the application; and

(4)    the result of not granting Mr Renzullo an extension of time is disproportionately prejudicial to Mr Renzullo.

29    The Assistant Minister opposes an extension of time, not only on the basis that there is no merit in the grounds if an extension were granted, but also on the ground that the delay itself is not adequately explained. The Assistant Minister stresses the point that there is no adequate explanation for the lengthy delay of seven months, given that Mr Renzullo was notified by the Department in its letter of 3 December 2014 that the AAT cannot review decisions made by the Minister or the Acting Minister personally. There is no adequate explanation, it is argued, as to why it is ‘necessary in the interests of the administration of justice’ to make orders granting the extension of time as required by s 477A(2) of the Act.

30    In Gabriel v Minister for Immigration and Border Protection [2015] FCA 474, Jessup J said (at [7]):

The notion that an extension of time is necessary in the interests of the administration of justice involves the proposition that an injustice will, or at least may well, arise if time is not extended. The injustice, of course, would be the exclusion of an applicant with an apparently viable case from the opportunity to present, and to develop, that case in a court with jurisdiction to grant the appropriate remedy. …

31    There does not appear to be any specific prejudice to the Assistant Minister in this instance, over and above general prejudice which always accompanies delay. Mr Renzullo deposes to his lack of understanding of the Decision (conveyed by letter dated 2 December 2014 and explained by officers of the Department) in his affidavit sworn 30 July 2015. Mr Renzullo further deposed to being advised that he needed to appeal the Decision through the ‘courts’ and to find a lawyer to represent him. He was pursuing some discussions with Legal Aid in the hope of making an application for judicial review, but this, as established, came to nothing, and it was not until April 2015 that Mr Renzullo’s solicitor was informed of Mr Renzullo’s immigration detention. The further processes of engaging pro bono counsel and obtaining information pursuant to a freedom of information request all necessarily took some time. I am satisfied that Mr Renzullo’s literacy is such that he could not be reasonably expected to understand the intricacies of the legal system and the accompanying legislation.

32    In addition, the Assistant Minister points to the fact that the extension of time application was not filed for more than three months after Mr Renzullo’s solicitor agreed to represent Mr Renzullo on a pro bono basis. The Assistant Minister submits that the reasons advanced by Mr Renzullo do not satisfactorily explain the extensive delay of seven months in excess of the statutorily provided 35 day period in making his application to the Court. It is argued that Mr Renzullo was in a better position than other persons in immigration detention who have English language difficulties, lack of knowledge of the capacity to seek judicial review of decisions to refuse or cancelling a visa, and experience difficulty in obtaining legal advice. The vast majority of such people, the Assistant Minister says, file their judicial review applications within time. The foundation for this submission as to the comparative position of Mr Renzullo as against all other applicants is not immediately apparent.

33    I approach the question on the basis that if very good grounds of review are shown, notwithstanding a substantial delay that is only partially explained, then an extension of time may be granted. A balancing of the two considerations is required. I am therefore disinclined to accept the Assistant Minister’s contention that the delay in challenging the Decision is so lengthy and so unexplained that the extension of time should be refused regardless of the merits of the substantive application: see, for example, AUK15 v Minister for Immigration and Border Protection [2015] FCA 938 (particularly at [131]). It seems to me that, if there were an exceptional case where it was necessary to do justice between the parties and necessary for the administration of justice more broadly, including the public interest, a partially explained period of delay such as the present could warrant an extension of time being granted.

34    The correct approach in this case, as the two applications are being heard together, is to pay close regard to the merits of the application itself. This is the approach taken in the submissions for Mr Renzullo. In reaching this conclusion, I do not suggest that a merely vaguely arguable case would be sufficient to outweigh a lengthy unexplained delay.

THE ARGUMENTS ADVANCED FOR MR RENZULLO

35    I turn then to the three substantive arguments underlying the prospective ground of appeal (set out above at [3]) which have been treated together in both Mr Renzullo’s submissions and the Assistant Minister’s submissions in response. This is, I think, also an appropriate approach as at least some of the grounds may not afford a singular ground of review if considered in isolation.

36    Mr Renzullo particularly emphasises that the single conviction for a sexual offence does not manifest a pattern of reoffending in relation to such offences. While he has been incarcerated at Casuarina Prison he has received positive reports about his behaviour in prison employment and has undertaken rehabilitative and education programs in prison. At no point in any of the exchanges leading up to the Decision did Mr Renzullo have the benefit of any professional assistance for the purpose of making submissions as to why the Decision should not be made. (Although, I note that submissions were sent on behalf of Mr Renzullo in relation to the prospective cancellation of his visa by Gunning Young, Barristers & Solicitors dated 16 June 2016.) Senior counsel for Mr Renzullo stresses, not only was the single offence to which the Assistant Minister points not a pattern of repeated conduct, but it also preceded the warning letter. Furthermore, any offence which post-dated the warning letter could not possibly be such as to warrant the exercise of a discretion so disproportionately adverse to him having regard to the circumstances as a whole.

37    In addition to the factors identified above, Mr Renzullo points to the fact that he has a 20 year old daughter, parents, a brother and a sister in Australia, as well as more distant relatives. He stresses that both of his parents are elderly and have health problems. In addition to his mother’s dementia, his father also suffers from high blood pressure, depression, anxiety and heart problems. Mr Renzullo has no family support or close ties to Italy and it is common ground that he speaks only limited Italian. Mr Renzullo has no assets and, I infer on the basis of information from the Italian Consul in Perth, he would not be entitled to any welfare or social security payments if he was deported to Italy.

38    Mr Renzullo contends that the reasons given by the Assistant Minister were so illogical or irrational, and the result so disproportionate and unreasonable an outcome, that the Decision should be quashed as being vitiated by jurisdictional error. The arguments on behalf of Mr Renzullo necessarily call into consideration the High Court decision of Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, in which these concepts were relatively recently examined. Mr Renzullo relies upon the observations of the Chief Justice (at [30]) where his Honour said (footnotes omitted):

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. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, “may have no particular legal consequence”. As Professor Galligan wrote:

“The general point is that the canons of rational action constitute constraints on discretionary decisions, but they are in the nature of threshold constraints above which there remains room for official judgment and choice both as to substantive and procedural matters. In other words, within the bounds of such constraints, different modes of decision-making may be employed.”

A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. It is not necessary for present purposes 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. Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, 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. That approach is an application of the principles discussed above and within the limitations they would impose on curial review of administrative discretions.

(emphasis added)

39    In NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, Allsop CJ and Katzmann J stated (at [6]):

… the law imposes certain limits on the exercise of the discretion. The Minister may not act arbitrarily, capriciously or legally unreasonably. The subject matter, scope and purpose of the Act may also require that certain considerations be taken into account …

(citations omitted).

Although the comments in NBMZ were made in relation to the Minister’s discretion under s 501(1) of the Act, they apply equally to the discretion under s 501(2): Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 (Stretton FC) per Griffiths J (at [66]). See also Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 per Allsop CJ, Griffiths and Wigney JJ (at [16]).

40    Mr Renzullo also relies on McCloy v New South Wales (2015) 325 ALR 15 (at [3]) in relation to the argument that the Decision was disproportionate, as a case in which the role of ‘proportionality’ in determining whether an administrative act is within power was recently affirmed. In my view, McCloy is not particularly helpful in this instance because McCloy did not involve the judicial review of ministerial administrative action. Rather, McCloy concerned the examination of State legislation in which issues of constitutionality arose.

41    Central to any grounds of judicial review alleging that an administrative decision is unreasonable, irrational or disproportionate is identification of the object and purpose for which the statutory power was created. In NBMZ, Allsop CJ and Katzmann J said (at [8]):

… The breadth of the discretion under s 501(1) can be accepted; a broad discretion remains, however, confined by the subject matter, scope and purpose of the Act: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 (per Dixon J). …

42    For present purposes, the power to cancel the visa of a person with a ‘substantial criminal record’ under s 501(2) of the Act exists to eliminate or reduce risk of future harm to the Australian community in the manner identified by Rangiah J, North J agreeing, in Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367 (see particularly [48]-[51], [56]-[60], [66]).

43    In relation to the function and role (if any) of reasons for present purposes, the relevant principles were recently distilled by the Full Court in Eden (at 64]) as follows:

… [W]here reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable.

(citations omitted)

44    Because reasons were given by the Assistant Minister in this case, it is possible to examine the process of reasoning. Although, in the words of Hayne, Kiefel and Bell JJ in Li (at [76]), even where reasons have been provided in respect of the decision under review ‘it may nevertheless not be possible for a court to comprehend how the decision was arrived at.’ The plurality further said that ‘[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.’ Can it be said in this case that it is not possible to comprehend how the decision was arrived at or that it lacks an evident and intelligible justification? Was it a disproportionate exercise of an administrative discretion?

45    To come back to the emphasised words in Li, it is important to recall the actual decision under review when understanding the context in which these now oft-cited remarks were made. The decision concerned a refusal to grant what was effectively an adjournment in circumstances where it was clear the request was reasonably based and not a delaying tactic. There was no apparent attempt to balance competing considerations. The Migration Review Tribunal (MRT) made a decision adverse to Ms Li, who had been training and obtaining work experience as a cook and had been refused a Skilled–Independent Overseas Student (Residence) (Class DD) visa. As was known to the MRT, when it made its decision, Ms Li was awaiting the outcome of a requested review by Trades Recognition Australia (TRA) of her unsuccessful (second) application to that authority for a skills assessment. A favourable skills assessment was a necessary condition of the grant of the type of visa she sought by Ms Li. The MRT did not accede to a request from the first respondent's migration agent to defer its determination pending TRA's decision. (Ultimately she did receive a favourable assessment and, while this was not directly relevant to the court’s decision, there was at least some information from her agent before the MRT when it made its decision that the review was likely to be favourable and the request for review was not therefore a delaying tactic based on conjecture).

46    Mr Renzullo’s central argument is that once-only, out of character sexual offences arising in unusual circumstances of family disputation could not rationally or reasonably (even together with other but quite unrelated convictions) have caused the ‘fear’ of risk of unacceptable harm to the Australian community that gave rise to such a disproportionate decision.

47    As set out above, the clear statutory object is to prevent a risk of future harm to the Australian community. Mr Renzullo argues that the focus of attention, therefore, needs to be on:

(1)    whether there is illogicality, irrationality or unreasonableness in the process of reasoning assessing the likelihood of future harm; or

(2)    whether the solution adopted is one which ‘is taking a sledgehammer to crack a nut’.

That is, that the Decision is such that it is irrational and unreasonable by exceeding what is necessary for the purpose it serves.

48    Mr Renzullo complains that the Assistant Minister, in considering his criminal history (at [8]-[13] of her reasons), adopted a formula of describing the facts comprising offences of which he was convicted and expressing a conclusion that the offending was ‘serious’ or ‘very serious’. It is argued that such a conclusion or conclusions did not relieve the Assistant Minister from considering the risk of harm to the Australian community objectively, at least in a relative sense by reference to the class of offences committed. There was no analysis in the reasons, it is said, beyond recounting the magnitude of the sentences imposed and even that was done without reference to how those sentences compared to the possible maxima. The Assistant Minister submits in response, and I accept that:

    the ‘objective seriousness’ of a visa holder’s offending is not a mandatory relevant consideration;

    the discretion to cancel a visa pursuant to s 501(2) of the Act is unfettered in its terms;

    there is nothing in the subject matter, scope and purpose of the Act which would found an implication that the ‘objective seriousness’ of the offence is something over and above the Assistant Minister’s own evaluation of the risk presented by the visa holder; and

    the (Assistant) Minister is bound to have regard to the objective facts in every case.

49    Mr Renzullo relied on Stretton v Minister for Immigration and Border Protection (No 2) (2015) 231 FCR 36 (at [57]) (at first instance) in support of this contention and his argument generally. However, I note that this decision was recently reversed on appeal by the Full Court in Stretton FC. Chief Justice Allsop said (at [21]) that the approach of the primary judge seemed to be brought about by a view of the need for the assessment to be objectively unreasonable, but that view did not also carry with it the authority for the Court to reach its own view of what is reasonable and, or what is necessary, and then, without more, supplant the view of the Minister. His Honour further said (at [21]):

It is not a correct approach for the Court on judicial review to assess the lawfulness of the decision under s 501 by asking whether the exercise of discretion was necessary for the purpose. That an assessment whether the decision-maker’s conclusion was legally unreasonable may involve some consideration of disproportionality does not authorise the Court to decide for itself what is necessary for the relevant purpose and to declare a decision beyond that assessment as unreasonable. The correct question, or perspective, if one is looking at the outcome in question, is not whether the Court thinks the decision is reasonable, or necessary for the purpose, or not, as the case may be; rather it is whether a decision-maker could reasonably come to the conclusion. Depending upon the nature of the decision, its attendant considerations and the statute in question, the Court may or may not have a degree of familiarity and confidence in assessing how a decision-maker ought to approach the matter. The decision and statutory context in Li was an example of this. Here, the decision was not a procedural decision; it was a substantive one concerned with an evaluation of the protection of the Australian community by a Minister of the Crown, personally.

50    In separate reasons in Stretton FC, Justice Griffiths sated (at [71]):

… [T]he power to either refuse to grant or to cancel a visa is a substantive power. It is to be contrasted with powers of a procedural nature, such as the power to adjourn the hearing of a review of a decision concerning the grant or cancellation of a visa as arose in both Li and Singh. While it may be accepted that, absent clear words to the contrary, there is a presumption that the Parliament intends all statutory discretions and powers to be exercised reasonably in the legal sense of that term, one of the matters which informs the legal standard of reasonableness is whether the subject matter of the power is substantive or procedural. Of course, other matters which inform that standard have to be taken into account but, generally speaking, the intensity of the legal standard is likely to be higher in the case of review of the exercise of a discretion which is of a procedural character.

51    Justice Griffiths continued (at [74]):

It is important to bear constantly in mind in applying the head of review of legal unreasonableness the admonition that to describe reasoning as unreasonable (or irrational) may merely be an emphatic way of disagreeing with it (see Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [5] per Gleeson CJ and Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [34] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). The fact that a Court exercising judicial review may disagree with a primary decision-maker’s evaluation of the relevant facts and considerations in the exercise of a statutory discretionary power is insufficient of itself to justify judicial intervention.

52    I note that special leave has been sought to appeal the Full Court decision in Stretton FC, but I am bound by the Full Court decision. I am also bound by the approach on this topic taken in Moana and Brown v Minister for Immigration and Border Protection [2015] FCAFC 141, that, in considering the risk of harm to the Australian community, there is no prescribed legislative or other duty to evaluate that risk in any particular way or to ascribe any particular characterisation to the quality of the risk, other than by applying the words of the statute.

53    But, in any event, in the present case, I do not consider that the approach taken to the offences following the issuing of the warning was erroneous. To the contrary, I think it is inappropriate in the context of Mr Renzullo’s criminal history as a whole to construe such offences as low grade or low level offences, if those descriptors are thought to preclude the offences being relevant to the assessment of risk. They are clearly, in my view, capable of being relevant to the risk assessment reached.

54    Furthermore, the Minister’s discretion to cancel a visa under s 501(2) of the Act is, and is intended to be, broad. That is a relevant consideration in assessing whether a decision under s 501(2) of the Act is unreasonable in a legal sense: Stretton FC per Griffiths J (at [69]-[70]); Eden per Allsop CJ, Griffiths and Wigney JJ (at [19]).

55    With respect to the 21 March 2005 convictions, being those discussed by the Assistant Minister at [8]-[10] of her reasons, she noted (at [16]) that the judge sentencing him for drug offences in 2011:

… was of the view that apart from Mr Renzullo’s 2005 convictions which arose out of circumstances relating to the breakdown of his marriage, Mr Renzullo appeared to have substantially overcome the serious offending of his youth.

56    Mr Renzullo stresses the sentencing judge’s observations about the 21 March 2005 convictions arising out of the breakdown of his marriage. Mr Renzullo also stresses the conclusion by the Assistant Minister that ‘much of his later offending relates to his substance abuse’ (at [14]), a conclusion which was repeated (at [24]). Having reached those conclusions, Mr Renzullo argues it was illogical for the Assistant Minister to then state (at [24]) that:

… Should Mr Renzullo re-offend in a similar manner, particularly with crimes involving sexual offending against children or threats of violence, [the Assistant Minister was] of the view that it could result in physical or psychological harm to the victims, and that this harm has the potential to be substantial.

(emphasis added)

57    Mr Renzullo submits that there was no evidence to suggest that there was any risk of Mr Renzullo engaging in the conduct for which he was convicted in 2005 in the future, and that such a conclusion was irrational and consistent with the observations and findings already made by the Assistant Minister (at [14], [16] and [24]). The process of logic and reasoning therefore, Mr Renzullo submits, is internally inconsistent and illogical, falling within the reviewable category of jurisdictional error. Furthermore, Mr Renzullo argues in relation to risk that, in respect of his history of drug offending, the Assistant Minister (at [18]) observed:

In 2013, the court noted that Mr Renzullo committed his most recent drug offences while on a suspended sentence during which he had responded positively to supervision and program requirements. Mr Renzullo had undertaken psychological counselling and substance abuse counselling, while being involved in the manufacture and use of illegal drugs.

58    Additionally, Mr Renzullo points to the Assistant Minister noting that a prison conduct report in relation to his incarceration was also positive about his behaviour and that he had no internal breaches at the time the report was prepared in July 2013 (at [20]). Rather, he had very positive reports about his employment in prison and was scheduled to undertake a cognitive skills program in addition to a high intensity substance abuse program. She noted that Mr Renzullo had advised that he completed these programs and she had taken that into account. It was also noted (at [21]) that Mr Renzullo personally believed he had curbed his offending and was optimistic about his prospects of rehabilitation. The Assistant Minister stated (at [24]): ‘I also find that despite past program attendance, Mr Renzullo has continued to re-offend and there remains a risk that he will do so again.’ This, it is argued for Mr Renzullo, is illogical because all of the evidence of Mr Renzullo’s conduct since 2005, which was summarised by the Assistant Minister (from [18]-[21]), pointed the other way. There was, therefore, no logical basis for the Assistant Minister to conclude that there was any potential for substantial harm from future offending in the submission advanced on behalf of Mr Renzullo.

59    In addition to this, it was argued that there were no express findings in the reasons for the decision about the likelihood of Mr Renzullo reoffending, but only blanket statements that ‘there remains a risk’ which does not reflect the engagement in any rational assessment of the risk of future harm.

60    In summary, Mr Renzullo contends that the only logical conclusion on a proper analysis of his offending, including examination of the objective seriousness of the offences concerned in assessing the risk of future harm, indicates that:

    Mr Renzullo had a history of low level offending from a young age due to behavioural problems;

    in 2005, he was convicted for a series of sexual offences against a single victim who was his stepdaughter, and for violent threats against the victim’s brother and mother, being his ex-wife. Those offences arose out of circumstances relating to the breakdown of his marriage;

    since then, his offending had related to substance abuse and his offending had decreased in frequency; and

    Mr Renzullo had undertaken psychological counselling and substance abuse counselling and had received positive reports of his behaviour whilst incarcerated.

Therefore, Mr Renzullo says that while there remains some risk that Mr Renzullo would commit further offences, such risk would relate to potential drug offences only, not to violent or sexual offences.

61    There are other balancing factors in favour of Mr Renzullo which he stresses the Assistant Minister must have ignored or assessed on a basis which was irrational and unreasonable in arriving at the Decision, including:

    Mr Renzullo has supportive family members in Australia;

    upon release Mr Renzullo plans to live with his parents, which would remove him from past associates and ties to his previous life;

    Mr Renzullo was only two years old when he began living in Australia and he had spent all his life in Australia;

    all of Mr Renzullo’s family live in Australia and he has strong family and social ties to the Australian community;

    Mr Renzullo has contributed to the Australian community through employment;

    Mr Renzullo’s mother suffers from dementia;

    Mr Renzullo’s father suffers from high blood pressure, depression, anxiety and heart problems, in addition to being stressed as a result of his wife’s condition;

    Mr Renzullo intends to live with his parents after release and help his father care for his mother;

    Mr Renzullo’s parents will be unable to travel to Italy to visit him;

    cancellation of Mr Renzullo’s visa would result in emotional and practical hardship for his parents and could result in further deterioration of his parents’ health;

    cancellation of Mr Renzullo’s visa would cause significant distress to his sister, his daughter and brother;

    Mr Renzullo has no family in Italy who could support him;

    Mr Renzullo does not speak Italian and removal to Italy will be very difficult for him; and

    Mr Renzullo’s health problems and limited Italian language skills may make it difficult for him to find any employment in Italy and will consequently increase the hardship he will experience.

62    There is no foundation for an argument that these matters were totally ignored. It is apparent in analysis of the reasons that they were examined and weighed in the balance.

63    In Te Puke v Minister for Immigration and Border Protection (2015) 230 FCR 499, Gbojueh v Minister for Immigration and Border Protection [2015] FCAFC 43 and Mrayhej v Minister for Immigration and Border Protection (No 2) [2015] FCA 691, statements were made to the general effect that the Minister was entitled to come to the view that the relevant criminal offending was serious. In each of those cases there were aspects of the sentencing judges’ remarks which might have supported a more lenient view of the offending than the view adopted by the Minister. Those authorities emphasise that the assessment of the material was a matter for the Minister. Thus, for instance in Mrayhej Foster J stated (at [56]):

The Minister took the view that the sex offences were “very serious”. The Minister was not bound to regard those offences as at the bottom end of the scale of sexual offences merely because the sentencing judge had described them that way.

64    Ultimately, it was a weighing exercise between clearly identified and openly disclosed factors. While it might be that qualitative descriptions, such as ‘serious’ or ‘very serious’, or notions of risk are topics on which views may differ, even widely differ, the process of reasoning of the Assistant Minister clearly demonstrated a weighing of different factors, both for and against the question of cancellation. The weight to be attached to such considerations is very much within the domain of the administrative decision-maker. Even if a court takes a different view as to the weight to be given to various factors, that does not render the Decision unreasonable in the Li sense.

65    As to disproportionality, while it is true that the consequences of cancellation are severe, that must inherently be so in most cancellations. It is a power to be used only in express (and fairly exceptional) circumstances, as described in the Act. The link between the circumstances and the power exercised in this case is manifest. While there is a challenge by Mr Renzullo to the logic giving rise to the risk to the public, that is a conclusion reached on weighing various factors on which reasonable minds may differ. There is no disproportionality in the present circumstances in the sense referred to by French CJ in Li, in which his Honour described administrative action which ‘on any view’ exceeded what was necessary for the purpose it served.

66    To the extent Mr Renzullo’s submissions may be taken as contending that the Assistant Minister simply resolved that any offence after the warning was given was sufficient to give rise to the risk, I do not accept that this is a fair assessment of the analysis in the reasons. It was open for the Assistant Minister to conclude that the offences which occurred after the warning was given demonstrated that the prospective risk to which the warning letter was directed had not been eliminated. The remarks in [24] of the reasons should also be considered in light of the Assistant Minister’s finding at [15] that Mr Renzullo had denied his sexual offending, and as a result, was considered unsuitable to undertake sex offender treatment in 2005, together with Mr Renzullo’s refusal to attend supportive counselling at the time.

67    Mr Renzullo complains of the Assistant Minister’s failure to have regard or adequate regard to the sentencing remarks made on the occasions of his most recent convictions from which it would have been apparent that his primary object in manufacturing the methylamphetamine was for his own use, rather than for commercial supply. It was described as a ‘home brew operation’ by the sentencing judge. While the sentencing judge in relation to the methylamphetamine offences may have described it as a ‘home brew operation’, his Honour also described it as a ‘very serious offence’, ‘punishable by imprisonment because of the inherent dangers and because of the dangers of methylamphetamine and the consequences, the harmful consequences of that drug’.

68    These offences were, of course, committed after the warning had been given and at a time when Mr Renzullo was still subject to a suspended term of imprisonment. Certainly it is true that personal use may be a lesser crime than selling such a drug. However, the real question is whether the personal use, taken against the background of all the other information, including the convictions, was relevant to the existence of the statutory risk. The degree of criminality is one thing, but the perception as to the risk posed by the conduct is the more pertinent question. That was the issue addressed by the Assistant Minister.

CONCLUSION

69    I am not persuaded that there is the illogicality in the Decision of the Assistant Minister contended for on behalf of Mr Renzullo. The examination of the reasons as a whole appears to reflect a fairly balanced review on the part of the Assistant Minister of all of the arguments for and against cancellation of Mr Renzullo’s visa under s 501(2) of the Act. Many of the factors against cancellation were examined, not simply those directly affecting the position of Mr Renzullo himself, but also to considerations involving his family.

70    Even if some may consider the Decision to be harsh, a severe or harsh decision is not, without more, one which lacks ‘evident and intelligible justification’ as observed by Pagone J in Cotterill v Minister for Immigration and Border Protection [2015] FCA 802 (at [11]). Furthermore, as the Full Court recently stated in Eden (at [62]):

… [I]n assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion. Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness. Such a decision falls within the range of possible lawful outcomes of the exercise of the power.

(citations omitted)

71    As stated by Allsop CJ, Griffiths and Wigney JJ in Eden (at [65]), the evaluation of whether a decision is legally unreasonable:

… involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes:

72    I am unable to accept Mr Renzullo’s contention that the reasoning in the Assistant Minister’s Decision is so illogical and irrational as to vitiate the decision to cancel Mr Renzullo’s visa with jurisdictional error on the ground of unreasonableness, or that the Decision was so disproportionate and unreasonable an exercise of power as to constitute an abuse of statutory power. Ultimately, the Assistant Minister weighed many factors. The conclusion she reached might not be the conclusion reached by others, and it may appear to be a severe or harsh conclusion, as it no doubt does appear to Mr Renzullo, but that does not make it a conclusion lacking evident and intelligible justification. The Court does not have jurisdiction under the guise of the jurisdictional errors identified in Li to weigh factors so as to give a different outcome, effectively by way of merits review.

73    Although the arguments for the Assistant Minister have prevailed on this occasion, I nevertheless express my gratitude to pro bono counsel and solicitors for the helpful and carefully presented arguments advanced for Mr Renzullo.

74    As the primary grounds of review would not succeed, the application for an extension of time within which to make an application to the Court for review of the Decision will be dismissed with costs.

Associate:

Dated:    22 April 2016