FEDERAL COURT OF AUSTRALIA

Muggeridge v Minister for Immigration and Border Protection [2017] FCA 730

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant must pay the respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

FARRELL J:

1    Mr Muggeridge is a citizen of New Zealand, born there in October 1963. He first arrived in Australia in 1986 at age 22. He became a full member of the Life and Death Motorcycle Club in March 1989. Having pleaded guilty, on 22 March 1991, Mr Muggeridge was convicted of taking part in the supply of a prohibited drug (amphetamine) in the period from about 1 January to about 1 November 1989. He was sentenced to four years and six months imprisonment, with an additional term of 18 months for his involvement, at an organisational level, in what the sentencing judge described as a “major criminal enterprise”. A deportation order was made against him in March 1993 by a delegate of the Minister for Immigration, Local Government and Ethnic Affairs. Following an unsuccessful appeal to the Administrative Appeals Tribunal, he was deported from Australia on 30 April 1994.

2    Mr Muggeridge has lived in Australia continuously since September 1997. He arrived on a fraudulently obtained passport. He was granted a visa in the name of “Robert Peter Warick Anderson” with a birth date on a different day in October 1963. He has lived under variants of that name ever since. The Minister for Immigration and Border Protection accepts that the Class TY Subclass 444 (Special Category) (Temporary) visa attaches to a New Zealand citizen who enters Australia, whether or not under his correct name.

3    Mr Muggeridge has been convicted of no offences since his return to Australia in 1997. He has built many close personal relationships and supported a number of charitable endeavours. He worked as a fitter and welder from 1997 until 2010. Following a workplace accident he has suffered from a debilitating spinal injury for which he has undergone a number of operations. He now receives daily physical assistance from his family.

4    The New Zealand authorities drew the Minister’s attention to Mr Muggeridge’s presence in Australia on 11 May 2012. The Department of Immigration and Citizenship (as the Department was then known) sent Mr Muggeridge a notice of intention to consider cancelling his visa on 11 July 2012. Further information was sent to him on 9 August 2012. He replied via solicitors on 2 October 2012 with a statement he made dated 30 September 2012 and numerous character references and supporting documents. Nothing further happened until 24 October 2015 when the Department for Immigration and Border Protection requested updated information from Mr Muggeridge, including whether he had any affiliation with any motorcycle club. In November 2015, Mr Muggeridge was asked to comment on police reports from Australia and New Zealand. He provided documents in November and December 2015. He received a further request for information which he responded to in February 2016.

5    Mr Muggeridge seeks review of the decision made personally by the Minister on 4 August 2016 to cancel his visa pursuant to s 501(2) of the Migration Act 1958 (Cth). The Minister found that Mr Muggeridge did not pass the “character test” under s 501(2)(a) because he had a “substantial criminal record” (s 501(6)(a)), having been sentenced to a term of imprisonment of more than 12 months (s 501(7)(c)); Mr Muggeridge does not dispute this. The Minister also found that Mr Muggeridge failed to satisfy him that Mr Muggeridge passes the character test: s 501(2)(b).

6    Mr Muggeridge’s application for review of the Minister’s decision was heard on 5 December 2016 and judgment was reserved. The primary focus of the application and argument was the Minister’s findings concerning the risk of Mr Muggeridge re-offending and the possibility of resulting harm to the Australian community.

7    Shortly after judgment was reserved, Mr Muggeridge sought leave to amend his application for review to take into account the decision in Tesic v Minister for Immigration and Border Protection [2016] FCA 1465 (Tesic v MIBP), which was delivered on 7 December 2016. The Minister did not object to the amendment and argument on those grounds was set down for hearing in early March 2017. The Minister lodged a notice of appeal from the decision in Tesic v MIBP, as a result of which the hearing of Mr Muggeridge’s revised application was vacated at Mr Muggeridge’s request, pending determination of the appeal. The Full Court allowed the Minister’s appeal on 7 June 2017: see Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93. On 14 June 2017, Mr Muggeridge indicated that he does not want to pursue the grounds based on the decision in Tesic v MIBP and asked that the matter proceed to judgment.

Background

8    Although Mr Muggeridge was born in New Zealand, his natural parents are Australian citizens. When Mr Muggeridge was born, his mother was two days short of her 15th birthday and his father was 17. In his statement dated 30 September 2012, Mr Muggeridge told the Department that he understands that his grandmother disapproved of his mother’s relationship with his father. His grandmother sent his mother to give birth in New Zealand and to have the baby adopted there. “Muggeridge” is the surname of his adoptive parents. He was the third of four adopted children. He became aware that he was adopted at age nine.

9    Following a persistent search for him by his mother, in early 1986, Mr Muggeridge’s biological parents contacted him. He was then aged about 23. With his former wife, he came to Australia to meet his parents (who had married since his birth) and siblings born in Australia, two brothers (Darren and Jason) and a sister.

10    After meeting his Australian family, Mr Muggeridge and his former wife returned to New Zealand, packed up and then came back to Australia to live in 1986. Although Mr Muggeridge and his former wife initially lived with his parents, after a dispute they moved out. His brother Darren came to live with Mr Muggeridge and his wife. Darren introduced Mr Muggeridge to members of the Life and Death Motorcycle Club in about 1987. Mr Muggeridge eventually played an important role in the Club’s amphetamine business.

11    Following Mr Muggeridge’s conviction in March 1991, on 4 September 1992, he applied for Australian citizenship by descent. On 12 February 1993, he was advised that his application was not approved because he did not satisfy the character requirement. He was deported from Australia on 30 April 1994 (see [1] above).

12    On 18 September 1997, Mr Muggeridge returned to Australia in the circumstances described in [2] above; he has not departed from Australia since then. In his statement dated 30 September 2012, Mr Muggeridge explained that he developed a close relationship with his two Australian brothers after making contact with them in 1986. In late 1996, his brothers visited him in New Zealand. They told him that Jason had been diagnosed with asbestosis and had a life expectancy of around one year. He returned to Australia in September 1997 to spend time with Jason, who died in September 2000.

13    Following the cancellation of his visa in August 2016, Mr Muggeridge was taken into immigration detention.

Minister’s Statement of Reasons

14    In the Minister’s Statement of Reasons for cancelling Mr Muggeridge’s visa, the Minister considered (1) the nature of Mr Muggeridge’s criminal conduct; (2) risk to the Australian community; (3) the best interests of minor children; (4) expectations of the Australian community; (5) Mr Muggeridge’s ties to Australia; and (6) the extent of any impediments Mr Muggeridge would face if he were removed from Australia.

Criminal conduct

15    Under the heading “Criminal conduct”, the Minister said that:

(1)    Mr Muggeridge had a relatively minor record of offending in New Zealand from the age of 18. In 1981, 1983, 1985 and 1986, he was convicted of driving offences resulting in fines and licence disqualification. In 1981 and 1985, he was convicted of theft and drug related offending that resulted in fines and probation.

(2)    In September 1989, in Australia, Mr Muggeridge was convicted of assault occasioning bodily harm and released upon entering a $5,000 self-recognizance. In November 1989, he was convicted of supplying a prohibited drug and sentenced to three months imprisonment.

(3)    In relation to Mr Muggeridge’s conviction in March 1991, the Minister “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”. The Minister noted that “the scope of the operation, the length of time over which it operated and the quantity of drugs distributed made it a major criminal enterprise netting many thousands of dollars for some of its participants”. The Minister said that in considering the nature and seriousness of a non-citizen’s criminal offending, he views “crimes related to the trafficking of illicit substances very seriously because they have a destructive effect on the fabric of society as a whole, not just its users”. The length of the sentence (four years and six months with an additional term of 18 months) is further evidence of its seriousness.

(4)    Noting that Mr Muggeridge had not been convicted of further offending since his return to Australia in September 1997, the Minister said that, notwithstanding, he took into account that Mr Muggeridge provided the Department with misleading information by returning to Australia on a fraudulently obtained passport following his deportation in April 1994 and that he has continued to use that false identity for some 19 years.

Risk to the Australian community

16    Under the heading “Risk to the Australian Community”, the Reasons state:

(1)    According to the Administrative Appeals Tribunal, Mr Muggeridge’s brother introduced him to the Life and Death Motorcycle Club. He bought two motorcycles from money advanced through the office of the president of the Club which he repaid by working at the Club’s amphetamine “shop” and ultimately came to be in charge of it.

(2)    Family and friends provided multiple letters of support attesting to Mr Muggeridge’s reform. Mr Muggeridge expressed remorse for his offending which occurred some 25 years ago when his life was “out of control” and he was associating with “the wrong crowd”.

(3)    In relation to the likelihood of Mr Muggeridge re-offending, the Minister concluded (as written):

22.    In terms of the likelihood of Mr MUGGERIDGE re-offending, I note that he has not been convicted of further offending for some 19 years, since returning to Australia in 1997. I have considered that the material before me portrays him as a family man who is active in his local church and has shown charity to the less fortunate. I find he has demonstrated rehabilitation and consider his likelihood of re-offending to be low.

23.    Notwithstanding, I have also taken into account the fact that that Mr MUGGERIDGE returned to Australia on a fraudulently obtained passport in a false identity and has been using this identity since 1997. I find this to show disregard for Australian and New Zealand criminal and immigration law.

24.    I have also given consideration to his past links and position of responsibility within the Life and Death Motorcycle Club. Prior to his deportation on 30 April 1994, Mr MUGGERIDGE stated that he had resigned from the club.

25.    There is no evidence that Mr MUGGERIDGE has affiliations with any outlaw motorcycle clubs since returning to Australia on 18 September 1997. Notwithstanding, I find that if Mr MUGGERIDGE resumed contact with any outlaw motorcycle club, his likelihood of re-offending would increase.

26.    I find that if Mr MUGGERIDGE engaged in further drug-related offending, it could result in psychological and/or physical harm to a member of the Australian community.

Best interests of minor children and ties to the Australian community

17    Under the headings, “Best interests of minor children” and “Ties to Australia”, the Minister noted that Mr Muggeridge has been in a de facto relationship since 2004 and became engaged to his partner in August 2015. His partner has two children (born in late 1999 and mid 2002) from a previous relationship. The children’s biological father is now deceased. Mr Muggeridge shared the domestic and parental responsibilities with her. His partner and the two children supported him by making submissions to the Minister including that the two children would be devastated if his visa was cancelled. The Minister found that Mr Muggeridge’s partner and the two children would suffer emotional and financial hardship if Mr Muggeridge’s visa was cancelled and that it was in their best interest that it not be cancelled.

18    Mr Muggeridge has active family ties in Australia. In addition to his partner and her two children he has contact with his father, his brother, his partner’s parents and extended family. He has an adult daughter from his first marriage. He also has ties to four adult stepchildren from two previous relationships. The Minister accepted that, if Mr Muggeridge’s visa was cancelled, his partner’s parents would suffer emotional and financial hardship, his daughter would suffer emotional hardship and his former adult stepchildren would suffer some emotional hardship.

19    Mr Muggeridge was employed as a fitter and welder between 1997 and 2010, when he suffered a workplace injury. He had also been involved in charity work.

20    The Minister accepted that Mr Muggeridge had lived for the majority of his adult life in Australia and since returning to Australia in 1997 he had been making a positive contribution to the community through his employment and charitable work. The Minister also took into account the effect of visa cancellation for minor children and family members in Australia.

Extent of impediments if removed

21    Under the heading “Extent of impediments if removed” the Minister noted that Mr Muggeridge’s workplace injury may be described as “decaying of the cord”. He has had seven surgical procedures since 2010, he requires ongoing treatment and is dependent on his family for physical support.

22    The Minister noted that Mr Muggeridge’s adoptive parents in New Zealand are deceased and he has no contact with his three adoptive siblings. The Minister accepted that Mr Muggeridge would suffer hardship associated with the absence of a direct relationship with his immediate family if he was returned to New Zealand. The Minister also accepted that he would suffer hardship from disruption of the continuity of his medical treatment and a lack of access to daily physical assistance that his family currently provides. However, the Minister found that the standard of medical treatment available in New Zealand is equivalent to that in Australia.

Conclusion

23    The Reasons concluded (as written):

53.    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 MUGGERIDGE.

54.    Mr MUGGERIDGE has committed a very serious crime, that of Taking part in the supply of a prohibited drug, which relates to trafficking and illicit substance and he should expect to forfeit the privilege of staying in Australia.

55.    In terms of his rehabilitation, I have considered that Mr MUGGERIDGE no longer appears to be affiliated with any outlaw motorcycle clubs and has not re-offended in some 19 years. However, I find that the Australian community could be exposed to great harm should Mr MUGGERIDGE resume contact with any outlaw motorcycle club and re-offend in a similar fashion. I could not rule out the possibility of further offending by Mr MUGGERIDGE. The Australian community should not tolerate any further risk of harm.

56.    I have also considered that Mr Muggeridge was deported from Australia on 30 April 1994 and returned on a fraudulently obtained passport on 18 September 1997. I find that Mr MUGGERIDGE has resided in Australia for some 19 years under a false name.

57.    I found that the above consideration outweighed the countervailing considerations in Mr MUGGERIDGE’s case, including the best interests of his minor step-children and impact on family members. I have also considered the length of time Mr MUGGERIDGE has made a positive contribution to the Australian community and the consequences of my decision for minor children and other family members.

58.    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 tolerance of criminal conduct by Mr MUGGERIDGE, than I otherwise would, because he has lived in Australia for most of his adult life.

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

60.    Having given consideration to all of these matters, I decided to exercise my discretion to cancel Mr MUGGERIDGE’s Class TY Subclass 444 Special Category (Temporary) visa under s501(2) of the Migration Act.

Statutory Framework

24    The object of the Migration Act is stated in s 4(1) as being:

… to regulate, in the national interest, the coming into, and presence in, Australia of non‑citizens.

25    The Minister accepts that where a person has applied for a visa in someone else’s name and that visa is granted, the person who applied for the visa will be the holder of the visa. This is because s 5(1) of the Migration Act contains the following definitions:

holder, in relation to a visa, means, subject to section 77 (visas held during visa period) the person to whom it was granted or a person included in it.

…

visa holder means the holder of a visa and, in relation to a visa, means the holder of the visa.

26    It is useful to set out the relevant parts of s 501:

Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

(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.

Note:     Character test is defined by subsection (6).

(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

…

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

…

Application to this Court

27    In written submissions filed on 23 November 2016 by his legal representatives, Mr Muggeridge sought leave to amend his application. The Minister did not object to leave being granted and the hearing on 5 December 2016 proceeded on the basis of the amended application which stated four grounds.

28    Mr Karp, counsel for Mr Muggeridge, acknowledged that these grounds overlapped. The Minister submitted that these grounds are simply an invitation to the Court to engage in impermissible merits review.

29    In deference to argument presented, I have dealt with grounds 1-3 in the terms presented, but at its core, Mr Muggeridge’s case is that the Minister’s decision is legally unreasonable.

Ground 1

30    The first ground was as follows:

The Minister failed to lawfully consider the protection of the Australian community, that being central to the power to refuse or cancel a visa held by a non-citizen and thus a “relevant consideration”.

Particulars

(a)    Failure to consider and address the likelihood or otherwise of the applicant re-offending.

(b)    The Minister relied on supposition, rather than evidence of risk.

(c)    In assessing the risk to the Australian community the Minister failed to consider the evidence going to the risk, and the degree of risk posed by the applicant.

31    Mr Karp confirmed that particular 1(a) was not pressed.

32    Mr Muggeridge submitted that having regard to the decisions of the Full Court in Djalic v Minister for Immigration (2004) 139 FCR 292; FCAFC 151 at [68] and Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367; FCAFC 54, the Minister is required to consider the protection of the Australian community and any risk of harm posed by the continued presence of the visa holder in Australia when making a decision whether to cancel a visa under s 501(2). He says that protection of the Australian community from persons who do not pass the “character test” as defined in s 501(6) may be a “relevant consideration” which the Minister is bound to take into account, relying on Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; HCA 40.

33    He says that it follows that, in exercising his discretion under s 501(2), the Minister must give “lawful consideration” to the risk of harm posed by the person whose visa may be refused. Citing Tickner v Chapman (1995) 57 FCR 451; FCA 987 at 462, he says that “consideration” involves an “active intellectual process”; there must not be merely the appearance of consideration, it must have occurred in reality. Accepting that what will constitute “lawful consideration” will depend on the nature of that which is to be considered, Mr Muggeridge says that where the protection of the community falls for consideration, it is necessary and logical to assess the degree of risk posed to the community by the visa holder and to do so with regard to the evidence.

34    Mr Muggeridge says that the reasoning process by which the Minister concluded that he could not rule out the possibility of him further reoffending is “elusive”. The Minister concluded that if Mr Muggeridge resumed contact with a motorcycle club, his likelihood of reoffending would increase, and if Mr Muggeridge engaged in further drug related offending it could result in harm to someone in the Australian community. But this did not involve any consideration of whether Mr Muggeridge was likely to join a motorcycle club or likely to reoffend in light of the evidence of his rehabilitation, the strength of his family ties, his involvement in his local church, his charitable activities and his spinal injury. He says that the Minister’s statement that he cannot rule out the risk of reoffending (Reasons at [55]) is based on nothing more than supposition or guesswork.

35    The Minister submitted that the decision of the Full Court in Moana, insofar as it suggests that consideration of the risk of harm to the Australian community is a mandatory relevant consideration, is plainly wrong and should not be followed. He nonetheless accepts that as a single judge, I will be bound to follow that decision.

36    Putting that to one side, the Minister submitted that he did in fact consider the risk of harm to the Australian community having regard to the material under that heading in the Reasons (see [16] above). Addressing what he sees as the crux of Mr Muggeridge’s argument – that there was no assessment of the likelihood of him reoffending or joining a motorcycle club in light of the evidence of Mr Muggeridge’s rehabilitation, his ties to the Australian community and spinal injury – the Minister submitted that nothing in Moana supports the requirement to make such an assessment in all cases and the Minister was not required to do more than he did in exercising his discretion in this case.

37    Turning to consideration of these submissions, in light of the matters addressed below, it is unnecessary for me to consider whether Moana was correctly decided on the issue of whether the Minister is bound to consider the risk of harm to the Australian community when making a decision under s 501(2) of the Migration Act.

38    Consistent with the decision of Kiefel and Bennett JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505; FCAFC 256 at [74], it is not open to me to find that the Minister was required to take into account factors personal to Mr Muggeridge in exercising the broad discretion conferred on him by s 501(2). Further, the Minister is not bound to evaluate the likelihood that a visa holder may engage in future conduct that may cause harm when exercising discretion to cancel a visa under s 501(2), although the failure to do so may be legally unreasonable in some circumstances: Moana at [72] and [74].

39    Having said that, it is plain from the Minister’s Reasons at [19]-[26] (the substance of which is set out at [16] above) and [55] that the Minister did consider the risk of harm to the Australian community of Mr Muggeridge’s continued presence in Australia in light of the evidence submitted by Mr Muggeridge or on his behalf to which the Minister expressly refers. The Minister took into account the circumstances of the offence on the basis of which Mr Muggeridge failed the “character test” and his personal circumstances since his return to Australia including the fact that he had not been convicted of further offending in the 19 years since his return. In light of those factors, the Minister found that the risk of re-offending was low. The Minister went on to take into account that Mr Muggeridge had shown disregard for laws of Australia and New Zealand by coming to Australia on a false passport and remained under the false identity for 19 years, his past links with the Life and Death Motorcycle Club (including the fact that he resigned from the Club before being deported in 1994) and that there was no evidence that he had reoffended in his 19 years in Australia since his return. Notwithstanding this, the Minister found that if Mr Muggeridge did resume contact with a motorcycle club, his risk of reoffending would increase. At [26] of the Reasons, the Minister found that drug related reoffending by Mr Muggeridge could result in psychological or physical harm to a member of the Australian community. These findings are evaluative judgments made after taking into account Mr Muggeridge’s submissions. It is true that paragraph [25] of the Reasons does not record the Minister’s opinion of the likelihood that Mr Muggeridge would resume contact with a motorcycle club. However the Minister’s conclusory finding at [55] of his Reasons is that the risk of reoffending could not be ruled out. That is not a guess or supposition about what would occur; it is consistent with the finding that the risk of reoffending was low. I do not accept Mr Muggeridge’s submission that the material in [19]-[25] and [55] of the Reasons should be characterised as mere recording of material submitted by or on behalf of Mr Muggeridge without active engagement with it.

40    The first ground has not been made out.

Grounds 2 and 3

41    The second and third grounds were as follows:

2.    The Minister breached the requirements of natural justice or procedural fairness.

Particulars

(a)    The applicant repeats Particulars (b) and (c) of Ground 1.

(b)    The conclusion, that the applicant may commit further drug offences was not based on evidence that had probative value.

3.    The Minister exceeded his jurisdiction by reaching a conclusion, that the applicant may commit further drug offences, that was not based on probative evidence.

42    Mr Muggeridge submitted that, whether characterised as a breach of the rules of procedural fairness or as an error in lawfully exercising his jurisdiction, the Minister’s decision was attended by jurisdictional error because there was no probative evidence leading logically or rationally to the conclusion that there was a risk of Mr Muggeridge reoffending or that he would resume contact with a motorcycle club and therefore that there was a risk of harm to the Australian community from Mr Muggeridge remaining in Australia. Rather, the Minister relied on hypothetical assumptions and past behaviour, which are not probative in that respect.

43    Mr Muggeridge relied on the judgment of Diplock LJ speaking for the Privy Council in Mahon v Air New Zealand [1984] AC 808 at 821 in relation to what is required of a decision-maker when making a finding in the exercise of jurisdiction:

What is required … is that the decision to make the finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it is disclosed, is not logically self contradictory.

44    Urging upon the Court that it should adopt this position, Mr Karp noted that in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; HCA 33 at 368 Deane J referred to the “compelling force” of the position taken in the United Kingdom in R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 488 and the quoted passage from Mahon.

45    Mr Karp referred at length to the authorities on whether such a rule of natural justice going to jurisdiction forms part of the law in Australia as canvassed by the Full Court in TCL Air Conditioner (Zhongshan) Company Ltd v Castel Electronics Pty Ltd (2014) 232 FCR 361; FCAFC 83 at [81]-[112] (Allsop CJ, Middleton and Foster JJ).

46    After referring to the quoted comment of Diplock LJ in Mahon, the Court in TCL at [90] noted that in Australia, “there is no authoritative adoption of this necessary characterisation of an otherwise available ground of error of law”, a consequence of which would be to bring such errors within the ambit of s 75(v) of the Constitution. At [97], the Court noted that in Bond, Mason CJ referred to the position in Mahon (at 170 CLR 356-357) and said that the approach adopted there “has not so far been accepted by this Court”. At [106], the Court stated that, until the High Court decides otherwise, this Court should respect the binding authority of what was said by Mason CJ in Bond, noting that the approach of the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; HCA 18 to legal unreasonableness may obviate the need for recourse to a “no evidence” rule; as Gageler J said in Li at [92], procedural fairness is closely linked with reasonableness.

47    On this basis, these grounds are not available to establish jurisdictional error. Having said that, I do not consider that the grounds could have been made out in any event in this case.

48    As observed by Basten JA in L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [34], where an evaluative judgment is to be formed on the basis of conflicting indicators, it will be difficult if not impossible to establish a “no evidence” ground of review. That is particularly so when the starting point of the evaluative judgement is that Mr Muggeridge did not pass the “character test” in s 501(6) by reason of s 501(7)(c), having been convicted of an offence the sentence for which is at least 12 months. As stated in Moana at [51], it is implicit that the presence in Australia of such a person may pose some risk of harm to the Australian community or some segment of it. Whether, having regard to the material submitted by the visa holder, any risk is acceptable is a matter for the Minister. Section 501(2) does not state any matter which the Minister is required to take into account. Further, the Minister did not find that Mr Muggeridge may commit further drug related offences, he found that that there was a low risk of him doing so. He did not find that Mr Muggeridge would resume contact with a motorcycle club, but rather that if he did, the risk of reoffending would be increased. After taking into account the nature of Mr Muggeridge’s offences, the probative material that the Minister relied on to make the finding that he was at low risk of reoffending was primarily the evidence and submissions provided by Mr Muggeridge. That material did not compel a finding that there was no risk of reoffending. Even though the evidence provided by Mr Muggeridge would suggest that it was extremely unlikely that Mr Muggeridge would resume contact with a motorcycle club, the Minister took that evidence into account in finding that that risk of reoffending could not be excluded. There is a logical connection between the low risk of reoffending and potential harm to the Australian community flowing from drug related offences.

Ground 4

49    The fourth ground is as follows:

The Minister’s decision was legally unreasonable.

Particulars

(a)    The finding, by implication, that the applicant posed an unacceptable risk to the Australian community was made without any assessment of the chances of the risk materialising.

(b)    The Minister relied on supposition, rather than evidence in finding that there was a risk.

(c)    That the decision to cancel the applicant’s visa was delayed for more than four years after it was discovered that he was in the Australian community is inconsistent with a finding that he represented an unacceptable risk of harm.

(d)    The justification for the finding that the applicant presented a risk to the Australian community was insufficient to outweigh the inference that the decision to cancel the applicant’s visa was outside the bounds of legal reasonableness.

Further Particulars

(i)    It is not apparent why the unassessed danger to the Australian community outweighed the apparently strong countervailing circumstances, including,

(A)    That the applicant committed his drug offences in 1989.

(B)    That there was no evidence that he had any connection with a motorcycle club, legal or otherwise.

(C)    That he had very strong family, community and church ties.

(D)    That he had a serious and debilitating spinal injury.

50    The principles for determining whether an administrative decision is legally unreasonable were not contested. They derive from the High Court’s decision in Li and a number of decisions of the Full Court dealing with s 501(2) including Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; FCAFC 1 and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; FCAFC 11.

51    Mr Muggeridge relied on the summary of principles found in the Full Court’s decision in Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; FCAFC 28 (Allsop CJ, Griffiths and Wigney JJ) at [58]-[65]:

58    First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making: Li at [26] and [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J); Singh at [43]; Stretton at [4] (Allsop CJ) and [53] (Griffiths J).

59    Second, the Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory (Li at [66]). It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision-maker: Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 90 ALJR 197 at [23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ).

60    Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision-making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an “outcome focused” conclusion without any specific jurisdictional error being identified: Li at [27]–[28] (French CJ), [72] (Hayne, Kiefel and Bell JJ); Singh at [44]; Stretton at [6] (Allsop CJ).

61    …

62    Fourth, in 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: Li at [29] (French CJ), [66] (Hayne, Kiefel and Bell JJ). 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: Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [7] (Allsop CJ). Such a decision falls within the range of possible lawful outcomes of the exercise of the power: Li at [105] (Gageler J); Stretton at [11] (Allsop CJ).

63    Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute: Li at [24] (French CJ), [67]–[67] (Hayne, Kiefel and Bell JJ); Stretton at [55] and [62] (Griffiths J). The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Singh at [42].

64    Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable: Singh at [45]–[47]. 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: Singh at [47]. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes: Li at [76] (Hayne, Kiefel and Bell JJ); Stretton at [13] (Allsop CJ).

65    Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at [42]. Rather, it 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.

52    The Minister relied on the statements in Stretton at [70] per Griffiths J which address the statutory context of s 501(2) and s 4(1) of the Migration Act, the fact that the decision-maker is the Minister (who is a political office holder accountable to Parliament and whose decision is not subject to merits review) and the obligation imposed on the Minister by s 501G(1)(e) to provide written reasons for a decision under s 501(2) to an aggrieved person. He says that while reasonable minds might differ on the position the Minister came to, it was an evaluative decision with which it is not the function of the Court to interfere and Mr Muggeridge seeks impermissible merits review.

53    As in Eden, this ground is concerned with whether the Minister’s expressed Reasons lacked intelligible justification but it is also directed at whether the outcome of the Minister’s exercise of power was legally unreasonable. Mr Muggeridge says that the decision is legally unreasonable because the Minister found that he was at risk of reoffending and made a supposition that he would join a motorcycle club, but those conclusions were not open on the evidence. That evidence includes the fact that his conviction for drug offences was in 1989, there is no evidence that he has reoffended or had contact with a motorcycle club since his return to Australia in September 1997 (or that he has had any inclination to do so), he resigned from the Life and Death Motorcycle Club before he was deported in 1994, he has strong family and community ties and he has a serious and debilitating spinal injury. Further, it took the Minister four years to cancel Mr Muggeridge’s visa after he became aware that Mr Muggeridge had returned to Australia on a false passport. During those four years, Mr Muggeridge was at large in the community and free to reoffend had he been so minded. The fact that that was permitted suggests that there was no real fear that he would reoffend, and that is evidence that the decision lacks evident and intelligible justification. Mr Muggeridge submitted that reasonable minds could not differ as to the view that the Minister’s decision lacks evident and intelligible justification.

54    It is true that it would be possible to understand Mr Muggeridge’s history of offending, particularly his involvement with the motorcycle club in the late 1980s, as part of a young man’s search for connection and family in circumstances where he had been robbed of his blood relations during his childhood by his grandmother’s decision that her daughter should give birth to him in New Zealand and offer him up for adoption there. There is poignancy in the fact that his grandmother’s action also robbed him of Australian citizenship which came to his three siblings by virtue of the fact that they were born here. The Minister accepts that Mr Muggeridge has demonstrated rehabilitation. Mr Muggeridge has been convicted of no further offending since returning to Australia in 1997. He gave up his membership with the motorcycle club in 1994 and there is no evidence that he has had further contact with any such organisation. The Minister acknowledged Mr Muggeridge’s contribution to the Australian society since 1997 through gainful employment in a trade, standing in loco parentis to at least six children, supporting other family members and volunteering with and donating to charities. A decision not to cancel Mr Muggeridge’s visa would encourage rehabilitation and contribution to the Australian society by rewarding demonstrated good living in the Australian community over a long period.

55    However, for reasons previously given, especially at [39] and [48] above and in light of the limits of the Court’s role as explained in Stretton, Singh and Eden, I am unable to accept Mr Muggeridge’s claim that the Minister’s decision to cancel his visa lacks intelligible justification and is therefore legally unreasonable.

56    The Minister made a finding that if Mr Muggeridge did resume contact with a motorcycle club, his risk of offending would be increased: it is hard to gainsay that as a statement of fact. The Minister did not make a finding that Mr Muggeridge would resume contact with a motorcycle club – a finding which would have been unsupported by the evidence.

57    The Minister assessed the risk of Mr Muggeridge further offending as low. The fact that the Minister could not rule out the risk of Mr Muggeridge further offending or resuming contact with a motorcycle club does not bespeak error in light of Mr Muggeridge’s conviction record and, following his deportation in 1994, his return to Australia in 1997 on a false passport (which is an offence, even though the Minister concedes that his residence in Australia since September 1997 has itself been legal). That is so despite the strength of the countervailing evidence related to Mr Muggeridge’s personal circumstances and the real financial and emotional hardship that will be imposed on many Australian citizens (many of whom attended the hearing of this application to support Mr Muggeridge), as well as to Mr Muggeridge, as a result of the Minister’s decision. Whether that low risk of Mr Muggeridge offending outweighs countervailing factors such that Mr Muggeridge’s visa should be cancelled is a matter within the Minister’s area of decisional freedom.

58    I must find that this ground has not been made out.

Conclusion

59    As none of the grounds have been made out, the application is dismissed. I will order that Mr Muggeridge pay the Minister’s costs as agreed or taxed.

Associate:

Dated:    28 June 2017