FEDERAL COURT OF AUSTRALIA

Creamer v Minister for Immigration and Border Protection [2018] FCA 269

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the Respondent’s costs.

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

REASONS FOR JUDGMENT

MURPHY J:

INTRODUCTION

1    In this matter the applicant, Ms Eileen Creamer, seeks judicial review of a decision of the respondent, the Minister for Immigration and Border Protection (the Minister), not to revoke the decision of a delegate of the Minister to cancel her Class TY Subclass 444 Special Category (Temporary) visa under s 501(3A) of the Migration Act 1958 (Cth) (the Act). The delegate cancelled the visa on the basis that Ms Creamer did not pass the “character test” in s 501(6) of the Act.

2    It is common ground between the parties that Ms Creamer does not pass the character test. In March 2011 she was found guilty of defensive homicide of her husband and on 20 April 2011 sentenced to 11 years’ imprisonment. She therefore has a “substantial criminal record” under s 501(6)(a) of the Act and pursuant to s 501(3A) it was mandatory for the delegate to cancel her visa. It is uncontentious that the only basis upon which the Minister could have revoked the cancellation was if the Minister was satisfied that there was “another reason” to do so pursuant to s 501CA(4). On 10 October 2017 the Minister decided that he was not satisfied that there existed another reason to revoke the cancellation of the visa, and confirmed the original cancellation decision.

3    In the application Ms Creamer seeks orders to set aside the Minister’s decision on the basis of jurisdictional error. For the reasons I explain it is appropriate to dismiss the application.

THE FACTS AND PROCEDURAL HISTORY

4    Ms Creamer was born in South Africa and is 60 years old. While living in South Africa in her thirties she began a relationship with Mr David Creamer, and she married him in 1997. In early 2000 Mr Creamer moved to New Zealand. Ms Creamer joined him in New Zealand eight months later and subsequently became a citizen of that country. In April 2006 Mr Creamer left New Zealand for Australia and Ms Creamer followed him in May 2007 at which time she was 49 years old. On 12 December 2007 Ms Creamer was granted a Class TY Subclass 444 Special Category (Temporary) visa.

5    On 2 February 2008 Ms Creamer killed Mr Creamer by repeatedly hitting him about the head with a type of club and stabbing him once in the abdomen. She initially denied any involvement in his death and was not arrested and charged with murder until 29 April 2009. She was remanded into custody from that date. Following a jury trial in the Supreme Court of Victoria in which Justice Coghlan presided, the jury acquitted Ms Creamer of the charge of murder but found her guilty of defensive homicide. On 20 April 2011 Coghlan J sentenced Ms Creamer to 11 years’ imprisonment with a non-parole period of seven years. Ms Creamer appealed her sentence on the ground that it was manifestly excessive. Her appeal was dismissed by the Victorian Court of Appeal on 16 August 2012.

6    In this application Ms Creamer relied on both Coghlan J’s sentencing remarks and the Court of Appeal’s reasons. It is necessary to deal with those remarks in some detail but for the present it suffices to note that the Court of Appeal characterised her offence as a “serious example of defensive homicide” that only fell outside of the parameters of murder “by a narrow margin” and noted that she had provided false evidence in “an unsuccessful attempt to reduce her moral culpability”.

7    On 11 April 2016, while Ms Creamer remained in prison, a delegate of the Minister cancelled her visa under s 501(3A) of the Act and advised her of that by letter dated the same day. The letter informed her that under s 501(CA)(4) she could make representations to the Minister requesting revocation of the decision to cancel her visa. The letter enclosed:

(a)    a copy of the Ministerial direction titled Direction No 65: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65); and

(b)    copies of various documents relating to Ms Creamer which were in the possession of the Department of Immigration and Border Protection (the Department) at the time of the visa cancellation decision, being:

(i)    the sentencing remarks of Coglan J dated 20 April 2011;

(ii)    the judgment of the Court of Appeal dated 16 August 2012 (Weinberg JA, Bongiorno JA and T Forrest AJA agreeing);

(iii)    a file note dated 11 April 2016;

(iv)    the judgment of the Supreme Court of Victoria dated 7 October 2009, regarding bail (Whelan J);

(v)    the judgment of the Court of Appeal dated 7 December 2009, regarding bail (Warren CJ, Redlich and Bongiorno JJA);

(vi)    the judgment of the Supreme Court of Victoria on 11 November 2015, regarding compensation under the Sentencing Act 1991 (Vic) (Beale J)

(vii)    a National Police Certificate dated 14 November 2012; and

(viii)    an undated Personal Details Form and Authority to Release Information.

8    On 14 April 2016 Ms Creamer lodged a request for revocation of the decision to cancel the visa. She lodged written submissions with the Department in that regard on 21 April 2016, 5 May 2016, 8 June 2016, 26 June 2016, 8 September 2016, and 14 September 2016. Her legal representatives, Carina Ford Immigration Lawyers, also made written submissions to the Department on 17 June 2016, 2 November 2016, 8 November 2016 and 28 November 2016. The submissions included a personal statement provided by Ms Creamer and reference letters signed by her partner and family members, a letter from Reverend Hagans at the Dame Phyllis Frost Centre, a letter from Ms Luciana Castagna of WestCASA and certificates of completion of various psycho-social and vocational training courses undertaken by Ms Creamer whilst in prison.

9    On 10 January 2017 the Minister decided not to revoke the decision to cancel Ms Creamer’s visa and signed a statement of reasons (the Minister’s reasons) in which he set out why he was not satisfied that there was “another reason” to revoke the visa cancellation decision. On 12 January 2017 the Department notified Ms Creamer of the decision.

10    On 14 February 2017 Ms Creamer applied to the Federal Circuit Court for judicial review of the Minister’s decision. On 17 March 2017 the Federal Circuit Court transferred the proceeding to this Court.

THE LEGISLATIVE FRAMEWORK

11    Section 501(3A) of the Act provides that the Minister must cancel a person’s visa if the Minister is satisfied that the person does not pass the character test. Section 501(6)(a) states that a person does not pass the character test if that person has a “substantial criminal record” which is defined in s 501(7)(c) to include where the person has been sentenced to a term of imprisonment of 12 months or more.

12    Section 501CA(4) of the Act provides:

The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

13    The Minister has issued guidance for determining whether “another reason” exists for the purposes of s 501CA(4)(b)(ii), doing so in the form of Direction 65 made under s 499 of the Act. The purpose of Direction 65 is to provide a framework within which decision-makers are to exercise the discretion to revoke a mandatory visa cancellation under s 501CA. It is uncontentious that, where the Minister personally decides whether to cancel a visa, the Minister is not bound by Direction 65 but it provides a broad indication of the types of issues that the Minister is likely to take into account. Part C of Direction 65 identifies some matters as “primary considerations” for decision-makers and some as “other considerations”.

CONSIDERATION

Grounds one, two and three of the application

14    Grounds one, two and three of the application are interrelated. They allege:

The Minister, in deciding not to revoke a decision of his delegate to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa made the following jurisdictional errors:

1.    The Minister erred in the exercise of his jurisdiction to consider whether to revoke the cancellation of the Applicant’s visa by taking into account an irrelevant consideration, namely that the period of her incarceration has been “at considerable expense to the community”.

2.    The Minister failed to accord the Applicant procedural fairness by failing to notify the Applicant that he would take into consideration that “she has been incarcerated, at considerable expense to the community” and that this consideration would be used to “outweigh” her contribution to the community.

3.    Alternatively to grounds 1 & 2, the Minister erred in the exercise of his jurisdiction, or failed to exercise his jurisdiction, having decided to take into account the costs to the community of the Applicant’s incarceration and whether such costs outweighed her contribution to the community, he failed to consider the true nature and extent of such costs.

15    Each of these grounds arise from the Minister’s reasons at [17] where the Minister said:

Ms Creamer has resided in Australia for nine years, having arrived as an adult of 49 years. Ms Creamer committed her offence nine months after her arrival. While Ms Creamer worked in the community in administrative roles from her arrival until being remanded in custody two years later, I consider that this limited period of contributing to the community is outweighed by the much longer period since, during which she has been incarcerated, at considerable expense to the community.

(Emphasis added.)

Ground 1 – taking into account an irrelevant consideration

16    Ms Creamer acknowledged that the Minister has a broad discretion to determine the considerations which are relevant factors in making a decision under s 501CA(4) of the Act. In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 at [128], Heydon and Crennan JJ, with whom Gleeson CJ agreed, said:

Parliament has left it to the Minister to decide the matters which are relevant to whether a person who fails the character test should be permitted to remain in Australia. Considerations relevant to the exercise of the power depend on the nature, scope and purpose of the power, understood in its context in the Act. As Ministerial Direction No 21 makes clear, the Minister considers that two of the factors relevant to the exercise of the discretion are related to the protection of the Australian community and the expectations of the community.

17    In Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65 at [105] Carr, Sundberg and Lander JJ said relevant factors are any matters that would suggest a person of otherwise bad character (as defined in the Act) should be allowed to remain in Australia:

The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of a relatively serious crime; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), should not be permitted to travel to or remain in Australia. Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister’s discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia.

18    Ms Creamer submitted that, notwithstanding the breadth of the discretion, the Minister’s reference to the “considerable cost” to the community of her incarceration showed that the Minister took into account an irrelevant consideration. She argued that such a consideration is beyond the nature, scope and purpose of the power to revoke the cancellation of a person’s visa. By reference to Direction 65 Ms Creamer contended that taking into account the cost of incarceration neither enhanced the protection of the community, nor impacted in any way on the expectations of the community. She submitted that the minimisation or avoidance of the cost of incarceration is not one of the objects set out in s 4, and nothing in s 501 or elsewhere in the Act suggests it is contemplated as a relevant consideration.

19    On Ms Creamer’s submission, the corollary of considering the cost of incarceration in deciding whether to revoke a mandatory visa cancellation is that the former visa-holder becomes the subject of an accounting-style “cost-benefit analysis” in which their economic value is critical to the outcome of the decision. Ms Creamer argued that this kind of analysis is not authorised by the Act and the Minister took account of an irrelevant consideration.

20    I do not accept Ms Creamer’s contentions.

21    First, in my view this ground of review misstates the thrust of the relevant part of the Minister’s reasons including by ascribing a significance to the Minister’s remark which it does not bear.

22    Under the heading “Strength, nature and duration of ties”, the Minister’s reasons said (at [16]-[18]):

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

Ms Creamer has resided in Australia for nine years, having arrived as an adult of 49 years. Ms Creamer committed her offence nine months after her arrival. While Ms Creamer worked in the community in administrative roles from her arrival until being remanded in custody two years later, I consider that this limited period of contributing to the community is outweighed by the much longer period since, during which she has been incarcerated, at considerable expense to the community.

I find that Australia has a low tolerance of criminal conduct by people, such as Ms Creamer, who have been participating in, and contributing to, the community only for a short period and who offended soon after arriving in Australia.

(Emphasis added.)

23    The Minister’s reasons said (at [19]-[23]):

(a)    Ms Creamer’s adult daughter, and her cousin and cousin’s husband and their four adult children, live in Australia and have active relationships with Ms Creamer;

(b)    Ms Creamer’s daughter has visited her mother weekly since moving to Australia, and that removing Ms Creamer from Australia would constitute considerable psychological hardship for her daughter;

(c)    Ms Creamer has been in a de facto relationship with Mr William Hobson since 2008 or 2009 and he will suffer some emotional distress if she is removed from Australia;

(d)    her cousin and cousin’s husband and their four adult children will suffer some emotional hardship if Ms Creamer is removed from Australia; and

(e)    Ms Creamer’s immediate and extended family in Australia would experience some emotional hardship if the visa cancellation decision was not revoked.

The Minister said (at [24]) that Ms Creamer had made a positive contribution for two years to the community and that the Minister had taken that into account. The Minister’s reasons then moved to discuss various other considerations.

24    It is uncontentious that Ms Creamer committed the relevant offence within approximately nine months of her arrival in Australia. At the time of the Minister’s refusal to revoke the visa cancellation she had lived in Australia for close to 10 years, but had spent almost eight years of that period in prison. The Minister expressed the view that the Australian community has a low tolerance for people who commit criminal offences who have only been participating in and contributing to the Australian community for a short period. The Minister found that Ms Creamer had made a positive contribution to the community for only two years, being the period between her arrival in Australia and her imprisonment.

25    The Minister’s reasons must be considered as a whole, in a practical and realistic manner: Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [22] per Flick J with Katzmann and Wigney JJ agreeing. It is not appropriate to examine such reasons “with an eye keenly attuned to the perception of error” or “with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law”: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 per Neaves, French and Cooper JJ; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 291 per Kirby J.

26    In my view, on a fair reading of the Minister’s reasons, the Minister was concerned with the strength, nature and duration of Ms Creamer’s ties to Australia. The length of Ms Creamer’s incarceration, compared to the short period when she lived and worked in the community, was relevant in that regard. In assessing the strength, nature and duration of her ties to Australia the thing which the Minister considered outweighed Ms Creamer’s limited period of contribution to the community was her much longer period of incarceration, not the expense of incarcerating her.

27    Ms Creamer sought to attach a significance to the Minister’s reference to the “considerable cost” of her incarceration which, considered in context, it does not carry. In my view the impugned reference was a throwaway remark which had no significance in his reasoning, and which cannot have materially affected the Minister’s decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J.

28    Second, paragraph 14.2 of Direction 65 provides that, in having regard to the strength, nature and duration of ties to Australia:

(a)    the Minister may have regard to “[h]ow long the non-citizen has resided in Australia”;

(b)    “less weight should be given where the non-citizen began offending soon after arriving in Australia”; and

(c)    “more weight should be given to time the non-citizen has spent contributing positively to the Australian community”.

29    Paragraph 6.3 of Direction 65 sets out a number of general principles which include a statement (at 6.3(5)):

Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time.

30    The relevant part of the Minister’s reasons was directed to these considerations, which were appropriate considerations having regard to the terms of Direction 65.

31    Third, it is unnecessary to decide given the views I have expressed above, but in light of the breadth of the Minister’s discretion I doubt that the Minister is prohibited from considering the cost of incarceration to the community. Given that the Minister may take account of the positive contribution a person has made to the community, it follows that it is permissible for the Minister to consider any detriment to the community the person has caused, which may include the cost of incarcerating the person.

32    It is appropriate to dismiss the first ground of the application.

Ground 2 – denial of procedural fairness

33    Under this ground Ms Creamer alleges that the Minister failed to accord her procedural fairness by failing to notify her, prior to refusing to revoke the decision cancelling her visa, that the cost associated with her incarceration would be taken into account.

34    Ms Creamer’s submissions to the Minister included material relating to her contribution to the community, including her work while incarcerated (predominantly laundry services for other prisoners and for members of the Australian Defence Forces). She accepted that she could anticipate the Minister would take these matters into account as part of the consideration of matters in Direction 65 going to the strength, duration and nature of her ties to the Australian community.

35    However, Ms Creamer contended that nothing in Part C of Direction 65 or the other material that was provided alerted her to the possibility that the Minister would take into account the cost of her incarceration when assessing the strength, nature and duration of her ties to the Australian community. She argued that, once the Minister had decided to assess the cost of her incarceration, and to use that matter adversely to her by determining that it outweighed her contribution to the community, the Minister was obliged to expose that information to her and give her the opportunity to comment on it.

36    In Ms Creamer’s contention, this consideration should have been expressly identified because it was a factor which was critical to the Minister’s decision and it was not apparent from the nature of the decision to be made that the Minister would have regard to it. She submitted that this is not a case in which it could be said that the issue was not of importance to the ultimate decision. She contended that Minister was required to advise her of the adverse conclusion which had been reached, and which was not obviously open on the material known to her.

37    Further, she argued that the consideration was not “so blindingly obvious as not to require any comment or submissions” nor was it information that was “purely factual and entirely incontrovertible”, such that there could be no answer to it: see Applicants M1015/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1309 (Applicants M1015/2003) at [45] per Weinberg J. Rather, it was information involving a combination of fact and opinion, which was contentious, and in those circumstances denying Ms Creamer the opportunity to comment on the information was procedurally unfair.

38    In Dunn v Minister for Immigration and Border Protection [2017] FCA 1328 at [23]-[24] I summarised the relevant principles regarding procedural fairness in the following terms:

In making a decision under s 501CA(4) the Minister must afford procedural fairness to the person affected by the decision. The nature and content of an obligation to accord procedural fairness will depend on the circumstances of each case, including the statutory context in which the decision is made: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [26] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [30]-[31] (Gleeson CJ and Hayne J).

Procedural fairness requires a decision-maker to identify for the person affected any critical issues not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must advise of any adverse conclusion which would not obviously be open on the known material, but is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [9] (French CJ and Kiefel J); Durani v Minister for Immigration and Border Protection (2014) ALR 130; [2014] FCAFC 79 at [57]. The Minister is required to adopt a procedure that is reasonable in the circumstances and to afford the person affected by the decision an opportunity to be heard. Breach of procedural fairness will occur, and jurisdictional error arise, where the procedure adopted so constrains the opportunity of the person to propound his or her case for a favourable exercise of the power as to amount to a “practical injustice”: Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 at [82] (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ).

39    I do not accept Ms Creamer’s submissions and in my view she failed to establish procedural unfairness.

40    First, as I said in relation to Ground 1, Ms Creamer’s contention misstates the purport of the Minister’s reasons in relation to the strength, nature and duration of her ties with Australia. On a fair reading of the relevant parts, the Minister was concerned with the length of Ms Creamer’s incarceration compared to the short period between her arriving in Australia and being imprisoned. The thing which the Minister considered outweighed Ms Creamer’s limited period of contribution to the community was her much longer period of incarceration, not the cost of incarceration.

41    Contrary to Ms Creamer’s submissions, the Minister’s remark about the “considerable cost” of her incarceration was not a critical factor to the decision. It was a throwaway line insignificant to the Minister’s ultimate conclusion. In my view procedural fairness did not require the Minister to expose his view about the cost of incarceration to Ms Creamer, and there was no jurisdictional error in failing to do so. As Weinberg J said in Applicants M1015/2003 at [58]:

It is one thing to say that an applicant is not prevented from claiming that he or she was denied procedural fairness merely because no evidence of what might have been said in response to adverse information has been adduced. It is altogether another thing to say that a throwaway line by the Tribunal about a matter that assumed little, if any, significance in the applicant’s case, and only the most tenuous relevance in the Tribunal’s reasons, gives rise to jurisdictional error.

42    Second, the requirement of procedural fairness is directed to avoiding practical injustice, and I am not persuaded that Ms Creamer suffered any practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] per Gleeson CJ.

43    As Weinberg J explained in Applicants M1015/2003 at [54]:

Whether or not there has been a denial of procedural fairness in any given case is largely dependent upon the particular facts of that case. Where the decision-maker has relied upon adverse information, without providing any opportunity to comment upon it, the question whether the decision is vitiated will depend upon a range of factors. These include the importance of the material to the ultimate decision, as well as the nature of that material. Some information is purely factual and entirely incontrovertible. There may simply be no answer to it. Other information may involve a combination of fact and opinion, and may be contentious. In relation to information of that kind, the denial of the opportunity to comment upon it may give rise to procedural unfairness. Moreover, some matters are so blindingly obvious as not to require any comment or submission. In such cases, the fact that there has been no opportunity to comment will be of little or no significance.

(Emphasis added.)

44    At the time the Minister decided not to revoke the visa cancellation decision Ms Creamer had been in prison for almost 8 years. Although she would not have known the precise quantum of the cost of her incarceration, she must have had a general understanding that the costs involved in incarcerating her for such a lengthy period were significant. It was incontrovertible that her incarceration involved considerable expense to the community. In my view the fact that her incarceration involved considerable cost was “blindingly obvious” and a natural and obvious evaluation of material known to both parties: Applicants M1015/2003 at [54]; James v Minister for Immigration and Border Protection [2017] FCA 410 at [46] per Robertson J.

45    It is important to keep in mind that the delegate’s letter of 14 April 2016 informed Ms Creamer that Direction 65 identified the issues relevant to deciding whether to revoke the visa cancellation. It invited Ms Creamer, when making any representations, to address each part of Direction 65 relevant to her circumstances. As I have said, Direction 65 provides that in having regard to the strength, nature and duration of ties to Australia the Minister should give less weight to those ties where the person began offending soon after arriving in Australia, and more weight to the time the person spent contributing positively to the Australian community. One of the general principles set out in Direction 65 is that Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in and contributing to the Australian community for only a short period of time.

46    Ms Creamer made representations in the knowledge that the Minister was likely to be guided by some or all of the considerations referred to in Direction 65: Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [41]-[42] per Tracey J. She was on notice that the Minister was likely to have regard to the length of the period that she had made a positive contribution as compared to the period that she had been incarcerated. She was on notice that the Minister was likely to conclude, in line with Direction 65, that Australia has a low tolerance of criminal conduct by people who have contributed to the Australian community for only a short period. She was in a position to provide the Minister with information relating to the strength, nature and duration of her ties to Australia having regard to her seven-year incarceration compared to the short period in which she had made a positive contribution to the community, and she made appropriate submissions in that regard. Having regard to the insignificance of the Minister’s reference to the cost of incarcerating her to his ultimate decision, she suffered no practical injustice.

47    It is appropriate to dismiss the second ground of the application.

Ground 3 – failure to consider the true nature and extent of the costs of the applicant’s incarceration

48    In the alternative Ms Creamer submitted that, if it was permissible for the Minister to take into account the cost to the community of her incarceration and if there was no breach of procedural fairness, the Minister was bound to take into account the “true” cost of incarceration and had failed to do so. She argued that once the Minister decided to take into account the cost of incarceration, he was bound to consider the information she had provided about the work she performed while she was in prison so that he made an informed assessment of the cost which befell the community through her imprisonment.

49    Ms Creamer submitted that she had continuously worked while in prison. She said this work self-evidently had value, that she had been paid only a meagre wage, and argued that on this basis her contribution to the community went beyond the two years which the Minister had recognised. She also argued that the last one year and eight months of her incarceration (after the end of her non-parole period) was likely to have been because of the original decision to cancel her visa, rather than as a consequence of her conviction and sentencing. She argued that this period should be factored into any calculation of the cost arising from her incarceration. On my calculation this period was only nine months, not one year and eight months as contended by the applicant, but not much turns on this.

50    Ms Creamer contended that the Minister did not consider the true duration of her contribution to the community, nor the extent to which the value of her work while in prison offset the cost of her incarceration. She submitted the Minister effectively ignored the material she provided in that regard and accordingly was not entitled to assume that the costs of her incarceration outweighed her period of contributing to the community. She argued that the Minister’s failure to take those matters into account constitutes a jurisdictional error.

51    I do not accept these contentions.

52    First, as I have said, in my view the Minister’s reference to the “considerable cost” of incarceration was a throwaway remark which had no significance in his ultimate decision. The thing which the Minister considered outweighed Ms Creamer’s limited period of contribution to the community was her much longer period of incarceration, not the expense of incarcerating her. The Minister’s view in that regard did not depend on any calculation of the “true” cost of her incarceration.

53    Second, Ms Creamer’s submission misdescribed the Minister’s task under s 501CA(4) of the Act. The Minister’s task was to evaluate the material before him and weigh the factors for and against revocation; it did not require the Minister to engage in a precise arithmetical computation of Ms Creamer’s financial contribution to the Australian community as compared with the financial burden created through her incarceration. The Minister did not attempt any such computation. He instead approached the evaluation by considering the two-year period in which Ms Creamer worked in administrative roles in Australia before being remanded in custody and compared that to the almost eight years during which she had been incarcerated. I am not persuaded that the Minister fell into jurisdictional error by failing to undertake a more precise assessment which included assessing the value of the work Ms Creamer was required to undertake while in prison and subtracting from that the (meagre) wages she was paid.

54    Third, as Ms Creamer accepted, the Minister has a broad discretion under s 501CA(4) and in my view he was not required to ascribe a particular weight to the different matters he considered relevant. It was open to the Minister to form the opinion that it was only appropriate to ascribe weight to the contribution Ms Creamer made in the paid employment she engaged in before being remanded in custody, and to give little or no weight to any contribution she made through work she undertook while imprisoned.

55    There is support for such an approach in Direction 65. Paragraph 6.3 refers to “participating in and contributing to” the community and such participation can only occur when a person is not in custody. On the terms of Direction 65 it was open to the Minister to only ascribe weight to the contribution Ms Creamer made while she was participating in the community.

56    Finally, for completeness I note that the earliest date on which Ms Creamer could have been granted parole was April 2016. Her visa was cancelled in the same month, and the Minister decided not to revoke the cancellation in January 2017. If, as she submitted, the visa cancellation was the reason for her continued incarceration during this period, it was only nine months, not one year and eight months. And whatever the reason for the final nine months of Ms Creamer’s incarceration it does not alter the fact that she had been incarcerated for much longer than she had participated in the Australian community.

57    Fourth, whether the Minister ignored Ms Creamer’s contribution while in prison is a question of fact, and Ms Creamer bears the onus of establishing that failure on the balance of probabilities: Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152; [2001] FCA 389 at [60] per Sackville J; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 (SZGUR) at [67] per Gummow J (Heydon and Crennan JJ agreeing).

58    The fact that the Minister made no reference to Ms Creamer’s work while she was in prison does not necessarily mean that he did not consider the matter at all. The Minister may have given little or no weight to that matter after having considered it, and this rather than a failure to consider at all may explain a lack of reference to the matter: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 at [65] per Griffiths, Perry and Bromwich JJ citing SZGUR at [31]. As the Full Court said in Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 (SZSRS) at [34] per Katzmann, Griffiths and Wigney JJ:

…where a particular matter, or particular evidence, is not referred to in the tribunal’s reasons, the findings and evidence that the tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight.

59    Having regard to the likely insignificance of any contribution Ms Creamer made to the community through her work while in prison, and the fact that the Minister was not obliged to undertake a precise arithmetical assessment of her contributions, Ms Creamer did not establish that the Minister’s failure to refer to any such contribution shows that he did not consider it at all, rather than merely ascribing that matter little or no weight.

60    It is appropriate to dismiss the third ground of the application.

Ground 4 – legal unreasonableness

61    Ground 4 of the application alleges:

The decision of the Respondent was legally unreasonable in that the Respondent made findings about the domestic violence suffered by the Applicant, her plea of guilty, remorse and her unwillingness to accept responsibility for the offence, which it was asserted were based on findings made by the sentencing Judge and the Court of Appeal, but which were not so made.

62    Under this ground Ms Creamer relied on parts of Coghlan J’s sentencing remarks and the reasons for judgment of Weinberg JA in the Court of Appeal, which dealt in some detail with Ms Creamer’s evidence at the trial, her circumstances generally and the extent to which she suffered from domestic violence. She submitted that the Minister’s reasons made numerous references to Coghlan J’s remarks and the Court of Appeal’s reasons, but the Minister misunderstood the decisions of both courts in several major ways. She contended that the Minister’s decision was legally unreasonable because it was founded on conclusions which the Minister said were based on the findings of Coghlan J and the Court of Appeal, but which were not in fact so based.

63    A finding can be considered to be legally unreasonable if it appears to be arbitrary, capricious, without common sense or plainly unjust: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [28] per French CJ, [110] per Gageler J; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 (Singh) at [44] per Allsop CJ, Robertson and Griffiths JJ. It might also be legally unreasonable if there is no evident, transparent or intelligible justification for the finding in the reasons of the decision-maker: Li at [105], Singh at [44]-[45]. As presented, Ms Creamer’s case appeared to rely upon the limb of legal unreasonableness which concentrates on an examination of the reasoning process by which the Minister arrived at the exercise of power. Therefore any intelligible justification must lie within the reasons the Minister gave for declining to revoke the visa cancellation decision: see Singh at [47].

64    Ms Creamer relied on four statements in the Minister’s reasons:

(a)    The Minister’s statement that the Court of Appeal found that psychological abuse was the only form of violence in Ms Creamer’s relationship with her late husband;

(b)    The Minister’s statement that the Court of Appeal noted that Ms Creamer’s guilty plea was at odds with the fact that she regularly introduced new evidence of an exculpatory nature;

(c)    The Minister’s statement that Ms Creamer’s maintenance of her claims of domestic violence demonstrated her unwillingness to accept responsibility for the offence; and

(d)    The Minister’s statement regarding Ms Creamer’s remorse.

I now turn to deal with each of these statements.

The Minister’s statement that the Court of Appeal found that psychological abuse was the only form of violence in Ms Creamer’s relationship with her late husband

65    The Minister’s reasons said (at [41]) under the subheading “Criminal conduct”:

I concur with the appeal Court finding that Ms Creamer’s actions were disproportionate and unnecessary to defend herself, noting the court only found psychological abuse to be a form of violence in her relationship. I further concur with the court’s findings that there was no evidence to support Ms Creamer’s belief that her late husband was going to kill her or cause her serious injury. I consider the sentence imposed by the sentencing Judge, and upheld by the appeal court, demonstrates how seriously the courts viewed Ms Creamer’s offence. On the basis of the above evidence and findings, I find Ms Creamer’s offence very serious.

(Emphasis added.)

66    The Minister’s reasons also said (at [43]) under the subheading “Risk to the Australian Community”:

The appeal court refers to the sentencing Judge’s findings that Ms Creamer’s late husband had not expressly threatened her and found the extent of violence was limited to psychological abuse from her late husband’s repeated requests that she participate in group sex. The appeal court stated that this form of abuse could not be given great weight. I further note that the appeal court found Ms Creamer’s actions objectively unnecessary and disproportionate.

(Emphasis added.)

67    The statements by the Court of Appeal can only be understood in the light of Coghlan J’s sentencing remarks and it is appropriate to set out the remarks of Coghlan J and the Court of Appeal in full.

68    Coghlan J said (at [31] to [39] inclusive of his sentencing remarks):

31    That leads to me to consider the question of domestic violence. The jury must have accepted sufficient of the evidence about domestic violence to have entertained the doubt about the question of self-defence. How much of the evidence they might have accepted is problematical. They are likely to have accepted your evidence that you were reluctant to engage in group sex and they might easily have found what you said to the police and the record of interview about that as convincing.

32    What weight they might have given to the general issue of violence in the marriage is much harder to assess. I regard it as unlikely that they would have acted on the evidence about the rape in New Zealand because you raised it in the trial for the first time. In particular, you did not mention it to Mr Cummins or Dr Vine when you well knew the reason for those examinations. In addition, you have said you were in two minds about whether or not to leave New Zealand, and yet you did so, even though you say you had been raped.

33    I accept, however, that once you reached Australia, you were in a very difficult position and you were more dependent upon David Creamer in a general way.

34    The jury, in coming to their verdict, were entitled to have regard to the fact that you were placed in a very difficult situation by the relationship your husband engaged in. His relatively long-term relationship with Marion Trewarn and his stated ambition to resume his relationship with his first wife are all part of the material which would come under the heading of domestic violence.

35    The jury were entitled to entertain a doubt about whether the prosecution had proved beyond reasonable doubt that you did not believe that it was necessary to do what you did to defend yourself from death or serious injury. You accepted in the way the trial was conducted that such belief as you held was not based upon reasonable grounds.

36    Although I do not accept all the matters raised about domestic violence in the written submissions made on your behalf, I do accept, as I have already set out, that the relationship was becoming increasingly difficult for you because of the matters set out, and particularly because of your relative isolation.

37    It is very difficult to determine a scale by which to measure family violence, in deciding where on such a scale any particular case should be placed. It was in this case sufficient, as found by the jury, for a jury to have convicted you of defensive homicide and not murder. It follows that they must have regarded domestic violence as real, because they could not, on the facts of this case, have reached this verdict had they not found so. In the absence of any finding as to domestic violence, it was inevitable that you be convicted of murder.

38    I will sentence you on the basis that you had been overwhelmed by the whole of the circumstances as they surrounded you and, in particular, by your concern that you were being forced into a sexual scenario which you did not want.

39    Insofar as the prosecution put a submission to the contrary, I do not accept it. It is very important to bear in mind the very broad definition of “family violence” in the Crimes Act 1958.

(Emphasis added.)

69    In the Court of Appeal, Weinberg J said (at [48] to [52] of his reasons):

48    In my opinion, the sentencing judge was entitled to characterise this as a serious example of defensive homicide. Insofar as it fell outside the parameters of murder, it did so only by a narrow margin. There was very little, in the objective evidence, and particularly in the judge’s findings, to support the appellant’s claim that she believed that she was under threat of ‘death or really serious injury’ within the meaning of that expression in s 9AC of the Crimes Act 1958. That is so even when one has regard to the broader family violence provisions contained in s 9AH.

49    The gravity of this offence must depend, to a considerable degree, upon the strength of the circumstances said to give rise to the belief that self-defence was warranted. Of course, in any case where the verdict is one of defensive homicide, the offender’s belief must have been unreasonable. Otherwise, the jury would have acquitted entirely, on the basis of self-defence.

50    However, there are degrees by which a belief may be said to have been unreasonable. In some cases, the line is just barely crossed. In others, the belief is wholly unjustifiable, almost to the point of being fanciful. The present case strikes me as falling within the latter category. The appellant had to be sentenced on the basis that she believed she was threatened with death or really serious injury. However, given the unchallenged findings by the sentencing judge, rejecting much of the appellant’s account of what took place, she clearly had no basis whatever for that belief.

51    In addition, it must not be forgotten that the appellant acted upon that belief by viciously bludgeoning the deceased to the head and body, and stabbing him to the upper abdomen. This was grossly disproportionate, as well is being objectively unnecessary in order to defend herself.

52    Having regard to his Honour’s finding that the appellant’s claim that her husband had threatened to ‘finish her off’ was fabricated, any threat that she believed confronted her most certainly was not immediate. While s 9AH of the Crimes Act 1958 provides that, in a case of family violence, this does not, of itself, disentitle a person from relying upon self-defence, [footnote 10] it is nonetheless a factor that is relevant when assessing the moral culpability of the offender.

(Emphasis added.)

70    Footnote 10 to [52] of Weinberg JA’s reasons is critical. It stated:

In light of the trial judge’s findings, including the finding that the deceased had not expressly threatened the appellant, s 9AH could only have been invoked on the basis that the deceased’s repeated demands for the appellant to engage in group sex amounted to ‘psychological abuse’ so as to constitute ‘violence’ under that section. In the particular circumstances of this case, that form of abuse could hardly be given great weight.

(Emphasis added.)

Ms Creamer’s submissions

71    Ms Creamer submitted that the Minister’s statement – that the Court of Appeal found that the only form of violence in Ms Creamer’s relationship with her late husband was psychological abuse – arose from a misunderstanding by the Minister of the footnote to [52] of the Court of Appeal’s reasons, and was incorrect.

72    Ms Creamer noted that Coghlan J considered the extent of the family violence she had suffered and said (at [32]):

What weight [the jury] might have given to the general issue of violence in the marriage is much harder to assess.

She accepted that Coghlan J rejected her allegations of some specific instances of domestic violence by her late husband, but noted that his Honour said (at [36]):

Although I do not accept all the matters raised about domestic violence in the written submissions made on your behalf, I do accept, as I have already set out, that the relationship was becoming increasingly difficult for you because of the matters set out, and particularly because of your relative isolation.

73    Ms Creamer submitted it was erroneous for the Minister to state that the Court of Appeal found that the only form of family violence in her relationship with her late husband was psychological abuse. In her contention, the “threat” to which the Court of Appeal referred in the footnote to [52] was the threat to “finish her off” which she had claimed was made on the day of the killing, and which Coghlan J found to be fabricated. She claimed the relevant remarks of Coghlan J and the Court of Appeal were directed to the domestic violence that was “directly relevant to the killing” – that is, on the day prior to and the day upon which she killed Mr Creamer. On this view, the statement in the footnote meant only that the Court of Appeal found that, at the time of the killing, the family violence she suffered was limited to “psychological abuse”, and neither court rejected the existence of physical violence in the relationship generally.

The Minister’s submissions

74    The Minister denied there was any error in his statement that the Court of Appeal found that the violence Ms Creamer suffered was limited to psychological abuse.

75    Like Ms Creamer, the Minister also relied on Coghlan J’s statement (at [38]) that he would sentence her on the basis that she had been overwhelmed by the “whole of the circumstances” as they surrounded her and, in particular, by her concern that she was being “forced into a sexual scenario which [she] did not want”. The Minister submitted that the “whole of the circumstances” to which Coghlan J was referring was Mr Creamer’s continued relationship with another woman and his stated intention to resume his relationship with his first wife, which his Honour said (at [34]) were “all part of the material which would come under the heading of domestic violence”, as well as her “relative isolation” (at [36]).

76    The Minister relied on the Court of Appeal’s statement (at [48]) that there was very little in the objective evidence or Coghlan J’s findings to support Ms Creamer’s claim that she was under threat of death or really serious injury within s 9AC of the Crimes Act 1958 (Vic) (the Crimes Act), even when one has regard to the broader family violence provisions in s 9AH of that Act. The Court of Appeal said (at [52]) that any threat that Ms Creamer believed she confronted “most certainly was not immediate”. At that time s 9AH(4) defined family violence to include physical abuse, sexual abuse and psychological abuse (which need not involve actual or threatened physical or sexual abuse) including but not limited to intimidation, harassment, damage to property, threats of physical abuse, sexual abuse or psychological abuse. The Minister noted that the Court of Appeal then said (in the footnote to [52]) that “s 9AH could only have been invoked on the basis that the deceased’s repeated demands for [Ms Creamer] to engage in group sex amounted to ‘psychological abuse’ so as to constitute ‘violence’ under that section.”

77    The Minister said the Court should reject Ms Creamer’s contention that the footnote only addressed whether a threat was made on the day of the killing and not domestic violence in her relationship more generally. The Minister argued that the Court of Appeal was addressing all of Coghlan’s J’s findings, including the absence of any express threat to Ms Creamer. On the Minister’s submission it was significant that the factual matters to which Coghlan J referred, in relation to the broad definition of family violence in s 9AH, did not include any threat of physical violence or actual physical violence towards Ms Creamer. The Minister submitted that the Court of Appeal’s finding that “violence” for the purposes of s 9AH could “only” have been invoked on the basis of psychological abuse amounted to a statement that there was no other form of abuse in the relationship.

78    Further, the Minister contended that, at the very least, his interpretation of the Court of Appeal’s reasons was open. The Minister submitted that alone was sufficient to refute any argument that the Minister’s reasons revealed legal unreasonableness.

Consideration

79    In his sentencing remarks Coghlan J referred to a number of claims made by Ms Creamer as to threats of physical violence and actual physical violence against her by her late husband. His Honour referred to her claim that her late husband physical assaulted her with a stick on the evening before his death, that her late husband again physically assaulted her the following morning and they had a physical fight which led to her late husband’s death, that during the fight her late husband threatened to “finish her off”, and that her husband raped her when they lived in New Zealand. Coghlan J :

(a)    said it was unlikely that the jury would have acted upon Ms Creamer’s evidence of those specific examples of physical violence including the rape;

(b)    refused to find that her late husband threatened to “finish her off”; and

(c)    rejected most or all of Ms Creamer’s account of what happened on the day before and on the day of the killing.

His Honour, however, said (at [32]) that it was “much harder to assess” what weight the jury might have given to “the general issue of violence in the marriage”.

80    It is common ground that Coghlan J and the Court of Appeal both rejected Ms Creamer’s evidence that she suffered threats of physical violence or actual physical violence in the period immediately preceding the killing. Having said this, the Court of Appeal’s finding in regard to violence in the relationship generally is, in my view, not clear. However, Ms Creamer had the burden of establishing that this aspect of the Minster’s reasons suffers from legal unreasonableness and I consider she failed to do so.

81    To meet the test for legal unreasonableness Ms Creamer must show that the Minister’s findings on the way to his conclusion “revealed illogicality or irrationality amounting to jurisdictional error”. The correct approach is to ask whether it was open to the Minister to engage in the process of reasoning in which he engaged and to make the findings which he did: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS) at [132]-[133] per Crennan and Bell JJ. The standard is one of “extreme illogicality or irrationality” and Ms Creamer must show that a reasonable or rational person would not have made such findings or employed such reasoning. It is not enough that the impugned finding or reasoning is something about which reasonable minds might differ: SZMDS at [135]; Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 (SZRKT) at [148] per Robertson J.

82    In my view, having regard to Coghlan J’s rejection of each of Ms Creamer’s specific claims of threatened physical violence or physical violence (or at least those claims to which his Honour referred), coupled with the Court of Appeal’s statement in the footnote that “violence” for the purposes of s 9AH could “only” have been invoked on the basis of psychological abuse, it was open to the Minister to understand the relevant part of the Court of Appeal’s reasons as he did. That is, he was entitled to conclude that the Court of Appeal found that the relevant violence in Ms Creamer’s relationship with her late husband was limited to psychological abuse. In my view the Minister’s reasoning was not without intelligible justification and Ms Creamer did not establish this part of Ground 4.

The Minister’s statement that the Court of Appeal noted that Ms Creamer’s guilty plea was at odds with the fact that she regularly introduced new evidence of an exculpatory nature

83    The Minister’s reasons said (at [46]) under the subheading “Risk to the Australian community”:

Ms Creamer appealed her 11 year sentence on the ground of ‘manifest excess’ due to multiple mitigating factors. Amongst these she stated her offer to plead guilty and domestic violence should have carried greater weight. The appeal court noted Ms Creamer’s plea of guilty was at odds with the fact that she ‘regularly introduced new evidence of an exculpatory nature that she had never previously mentioned’. The appeal court noted the sentencing Judge had viewed the domestic violence primarily as Ms Creamer being ‘simply overwhelmed by the events surrounding her and her husband’. The appeal court dismissed Ms Creamer’s appeal.

(Emphasis added.)

Ms Creamer’s submissions

84    Ms Creamer relied upon the highlighted passage above and submitted that the Minister wrongly blended two discrete elements of the Court of Appeal’s reasons.

85    The first is that the Court of Appeal rejected Ms Creamer’s submission that the sentencing judge should have given more weight to her offer to plead guilty to either manslaughter or defensive homicide before the trial. The second is that the Court of Appeal’s reasons recited the prosecution submission that Ms Creamer had not been a credible witness at trial and that she “regularly introduced new evidence of an exculpatory nature that she had never previously mentioned”.

86    Ms Creamer submitted that the Court of Appeal:

(a)    did not expressly or otherwise adopt the Crown’s submission in that regard; and

(b)    did not state that Ms Creamer’s offer to plead guilty was “at odds” with anything.

She argued that the Minister wrongly attributed the impugned statement to the Court of Appeal and then relied upon it in forming the conclusion that Ms Creamer was unwilling to accept responsibility for her offence, which showed legal unreasonableness.

The Minister’s submissions

87    The Minister accepted that the Court of Appeal’s reasons merely recited a Crown submission. However, the Minister denied that there was any material error in his reasons for decision. The Minister noted that the Court of Appeal found that Ms Creamer’s evidence in the course of the trial was “palpably at odds with the objective facts” and argued that the Court’s reasoning in that regard was wholly consistent with and embraced the reasoning in the Crown submission.

Consideration

88    It is common ground that the Minister incorrectly stated the Court of Appeal’s reasons. The Court of Appeal did not say that Ms Creamer “regularly introduced new evidence of an exculpatory nature that she had never previously mentioned” and it did not state that this was at odds with her guilty plea.

89    Even so, I do not consider that misstatement to be material and am not persuaded that it rises to the level of jurisdictional error. I say this, first, because it is plain that Coghlan J and the Court of Appeal rejected most of Ms Creamer’s exculpatory evidence. Until shortly prior to the trial she had denied any involvement in her late husband’s death and her exculpatory evidence was all new. The Court of Appeal:

(a)    noted Coghlan J’s conclusion that Ms Creamer’s account of the circumstances surrounding the offence did not “much accord with the known facts” (at [18]);

(b)    said that the location of the bloodstains from her late husband’s injuries was not “at all consistent” with Ms Creamer’s version of events (at [18]);

(c)    noted Coghlan J’s opinion that Ms Creamer “had said a number of things which she thought would assist her case, but which were demonstrably untrue” (at [19]]);

(d)    noted that the pathologist’s evidence was entirely inconsistent with Ms Creamer’s account of how the deceased had met his death (at [22]);

(e)    noted Coghlan J’s conclusion that despite her denial, Ms Creamer was in fact fully aware that the deceased intended to go back to his former wife (at [24]);

(f)    said that the evidence given by Ms Creamer in the course of the trial was “palpably at odds with the objective facts” (at [31]);

(g)    said that there was very little in the objective evidence to support Ms Creamer’s claim that she believed she was under threat of death or really serious injury (at [48]);

(h)    said that Coghlan J rejected much of Ms Creamer’s account of what took place and that Ms Creamer “clearly had no basis whatever” for a belief that self-defence was warranted (at [50]);

(i)    noted Coghlan J’s finding that Ms Creamer’s claim that her late husband had threatened to “finish her off” was fabricated at [52]); and

(j)    said that Ms Creamer “gave false evidence regarding the circumstances surrounding the death of her husband in what amounted to an unsuccessful attempt to reduce her moral culpability” (at [53]).

90    In my view, while the Minister misstated the source of the statement that Ms Creamer “regularly introduced new evidence of an exculpatory nature”, the rub of the statement accords with the Court of Appeal’s findings.

91    Second, the Minister’s conclusion that Ms Creamer was unwilling to accept responsibility for her offence was not based only in the alleged misstatement. As I explain in relation to the next ground, the Minister’s reasons (at [42]-[46] and at [48]) set out the various matters which provide separate underpinning for the conclusion that Ms Creamer demonstrated a lack of willingness to accept responsibility for the offence she committed. In my view that conclusion was open to the Minister.

92    Third, the overarching question remains whether the ultimate decision was affected by jurisdictional error (SZRKT at [151]) and there is nothing to show that any misunderstanding of the Court of Appeal’s reasons in this regard was significant to the Minister’s ultimate decision.

93    Ms Creamer failed to establish that the Minister’s reasoning and/or his decision lacked an evident and intelligible justification, and did not establish this part of Ground 4.

The Minister’s statement that Ms Creamer’s maintenance of her claims of domestic violence demonstrated her unwillingness to accept responsibility for the offence

94    The Minister’s reasons said (at [47]), under the heading “Risk to the Australian community”:

I consider this background, together with her continued maintenance of her claims about domestic violence and related matters that were largely dismissed by the Courts, demonstrates Ms Creamer’s lack of willingness to accept responsibility for her offence.

The background to which the Minister was referring can only have been to the preceding paragraphs [42] to [46] in that section of the Minister’s reasons.

95    Ms Creamer contended that, to the extent that the Minister’s conclusion at [47] is based on findings not made by Coghlan J or the Court of Appeal it is inaccurate.

96    In my view there is little force in this contention.

97    I say this, first, because subject to the points discussed above, the thrust of the Minister’s reasons at [42]-[46] (and also at [48]) accurately reflects findings made by Coghlan J and the Court of Appeal. It was open to the Ministered to conclude that those findings demonstrated an unwillingness to take responsibility for the offence Ms Creamer committed.

98    The Minister noted (at [42]) that Ms Creamer continued to maintain that she had been in a relationship with her late husband for 10 years in which she suffered domestic violence constituted by mental, verbal, physical and sexual abuse. The Minister then set out that:

(a)    Coghlan J did not accept Ms Creamer’s evidence in full in relation to the domestic violence she suffered nor find that it accounted for her actions. However her sentence reflected his Honour’s acceptance that her relationship with her late husband was becoming “increasingly difficult” for her and that she was living in “relative isolation” (at [42]);

(b)    the Court of Appeal said that her late husband had not expressly threatened Ms Creamer and (as discussed in relation to the first allegation of legal unreasonableness) on the Minister’s construction the Court of Appeal found that the “violence” she suffered within the broad definition in s 9AH of the Crimes Act was limited to psychological abuse through repeated requests that she participate in group sex (at [43]);

(c)    Ms Creamer’s account of the circumstances leading to the offence was substantially different to what was accepted by Coghlan J, and the Court of Appeal described her evidence as “palpably at odds with the objective facts” (at [44]);

(d)    Ms Creamer denied any involvement in her late husband’s death in her initial police interviews in February 2008 and continued to do so until just before trial (at [45]);

(e)    Ms Creamer regularly introduced new evidence of an exculpatory nature that she had never previously mentioned, but Coghlan J had viewed the domestic violence primarily as Ms Creamer up being “simply overwhelmed by the events surrounding her and her husband” (at [46]); and

(f)    while Ms Creamer expressed regret for her offence in her submissions, she did not express any remorse for the effect of her actions on her late husband or his family. She continued to maintain that while she regretted her offence she would have been killed by her husband if she had not acted as she did. The Minister noted that both Coghlan J and the Court of Appeal rejected this (at [48]).

99    The Minister concluded that this demonstrated Ms Creamer’s lack of willingness to accept responsibility for her offence.

100    In my view this reasoning and conclusion at [42]-[48] was plainly open on the material before the Minister. While reasonable minds might differ in the conclusion to be drawn, this is not sufficient: SZMDS at [135]; SZRKT at [148]. The Minister’s reasons reveal an evident or intelligible basis for both the reasoning and conclusion.

101    Second, the Minister’s conclusion that Ms Creamer demonstrated an unwillingness to accept responsibility for her offence is supported by matters about which there is no dispute. The Minister described the conclusion as based on all the matters set out at [42]-[48], and it is only in relation to some of them that Ms Creamer asserts the Minister misunderstood the Court of Appeal. It was a matter for the Minister what weight he gave to each of the objective facts upon which he relied and there is little to indicate that the matters challenged by Ms Creamer were essential to the Minister’s reasoning or decision.

102    Third, it is established that the Minister was not confined by Coghlan J’s or the Court of Appeal’s reasons in his reasoning or conclusions. The Minister was entitled to form his own views based on the objective facts: Te Puke v Minister for Immigration and Border Protection (2015) 230 FCR 499; [2015] FCA 398 (Te Puke) at [96] per Wigney J, Mrayhej v Minister for Immigration and Border Protection (No 2) (2015) 147 ALD 434; [2015] FCA 691 at [56] per Foster J; Renzullo v Assistant Minister for Immigration and Border Protection [2016] FCA 412 at [63]-[64] per McKerracher J.

103    Finally, I reiterate that the overarching question remains whether the ultimate decision was affected by jurisdictional error: SZRKT at [151]. In my view there is little to indicate that the Minister’s misunderstanding of parts of the Court of Appeal’s reasons was significant to the ultimate decision.

104    In my view Ms Creamer did not establish this part of Ground 4.

The Minister’s statement regarding Ms Creamer’s remorse

105    The Minister’s reasons said (at [49]) under the subheading “Risk to the Australian community”:

I take into account that the sentencing Judge said he was satisfied Ms Creamer genuinely regretted her offence, and in that sense was remorseful. However I note the appeal court found that this should be qualified by the fact that Ms Creamer gave false evidence in attempt to reduce her culpability. I concur with these findings.

(Emphasis added.)

106    Ms Creamer submitted that the Minister’s statement – that the Court of Appeal found that Ms Creamer’s remorse should be qualified by the fact that she gave false evidence in an attempt to reduce her culpability – was a misunderstanding of the Court of Appeal’s reasons.

107    In the Court of Appeal Weinberg JA said (at [53]):

The appellant was given credit for remorse. However, that must, in my view, be qualified by the fact that she gave false evidence regarding the circumstances surrounding the death of her husband in what amounted to an unsuccessful attempt to reduce her moral culpability.

108    Ms Creamer argued that the Court of Appeal did not make any finding of fact as to remorse, different to Coghlan J’s finding, and instead the qualification to which the Court of Appeal referred was the “credit for remorse” to which Ms Creamer was entitled. She contended that there is an important distinction between qualifying the finding of remorse itself, as suggested by the Minister’s statement, and what the Court of Appeal in fact did, which was observe that “credit for remorse” was qualified by other sentencing factors.

109    I can see little force in Ms Creamer’s submissions in this regard.

110    The Minister’s reasons must be read as a whole and in a practical and realistic way: Te Puke at [88]; Wu Shan Liang at 272. On a fair reading of the Minister’s reasons it is difficult to see any meaningful difference between the Minister’s statement and Ms Creamer’s proposition that the Court of Appeal qualified the “credit for remorse” rather than the remorse itself.

111    To the extent that there is some difference I am not persuaded that it made any difference to the Minister’s ultimate conclusion, which remains the overarching question.

112    In my view Ms Creamer did not establish this part of Ground 4.

113    Having regard to the parts of the Minister’s reasons upon which Ms Creamer relied, taken both individually and cumulatively, she failed to establish Ground 4.

COSTS

114    I am not aware of any reason why costs should not follow the event and I have made orders for Ms Creamer to pay the Minister’s costs. If either party contends that there is a reason for a different order as to costs they must file short submissions (not more than two pages) within seven days. The other party must file short submissions in response within seven days thereafter. Any question of costs arising from those submissions will be dealt with on the papers.

Associate:

Dated:    9 March 2018