FEDERAL COURT OF AUSTRALIA

Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620

ORDERS

THE COURT ORDERS THAT:

1.    There issue absolute in the first instance a writ of certiorari directed to the respondent to quash the decision of 14 February 2017.

2.    There issue absolute in the first instance a writ of mandamus directed to the respondent to exercise the power in s 501CA(4) of the Migration Act 1958 (Cth) according to law.

3.    The respondent pay the applicant’s costs in this Court as agreed or taxed.

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

REASONS FOR JUDGMENT

THAWLEY J:

1    By way of a Further Amended Originating Application filed on 21 March 2018, the applicant seeks judicial review under s 476A of the Migration Act 1958 (Cth) (Act) of the decision of the Assistant Minister for Immigration and Border Protection (Minister) made on 14 February 2017 under s 501CA(4) not to revoke a decision made under s 501(3A) to cancel the applicant’s visa.

BACKGROUND

2    The decision under s 501(3A) was made by a delegate of the Minister on 17 April 2015 (original decision). That provision requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test. By reason of s 501(6)(a), a person does not pass the character test if the person has a substantial criminal record. Under s 501(7)(c), a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. On 3 March 2014, the applicant had been sentenced to a term of imprisonment of seven years and three months after having pleaded guilty on 16 May 2013 to knowingly taking part in the supply of a large commercial quantity (2.5 kg) of heroin between 11 October 2011 and 4 November 2011. There was no dispute that the applicant failed the character test because of the sentence and that the visa was validly cancelled.

3    The remarks of the sentencing judge were before the Minister. These included:

After going off prescribed medication, the Offender started to use heroin instead and became addicted to it. It was in this context that he became involved in the offence in order to procure heroin for his own use. Since going into custody [on 4 November 2011] he has undertaken a number of programs to address his substance abuse, as well as programs to assist in handling grief. The Court accepts that he has insight into the harm done by illicit drugs and it is unlikely he will use them again.

The Offender has been working in gaol and has not breached any relevant disciplinary rules.

The Offender has no prior convictions, so the Court extended the benefit of prior good character. …

As he has no prior convictions, the Court if [sic] of the view the offence is an isolated aberration. …

In all the circumstances, the Court is satisfied that his prospects of rehabilitation and not re-offending are good.

4    Whilst he was incarcerated, the applicant was permitted by NSW Corrective Services to take day leave as well as weekend leave. Some of this leave was directed to him being employed by Vegmasters Pty Ltd as part of a return to work program run by Silverwater Correctional Centre. That company furnished a letter indicating stating that it would ask the applicant to continue his employment on release, which was then anticipated to occur on 3 May 2015. The applicant completed a number of courses available in gaol directed towards drug and alcohol addiction. He obtained a number of certificates, including for completing the “12 Session Addictive Behaviours Program” entitled “Getting SMART” and introductory courses with TAFE relevant to occupational health and safety. The material before the Minister was to the effect that the initial cause of the applicant’s drug addiction was related to depression (see Minister’s reasons for decision at [50] and [51]) and that his depression had improved despite his circumstances, which included incarceration and medical issues (specifically, prostate cancer).

5    The earliest the applicant could have been released on parole was 3 May 2015. He was in fact released on parole on that date. By that time, however, the Minister’s delegate had made the original decision cancelling the applicant’s visa (on 17 April 2015). On his release from custody, the applicant was detained to reside at the Villawood Immigration Detention Centre.

6    Section 501CA(4) contemplates the possible revocation of a cancellation decision under subsection 501(3A). In accordance with s 501CA(3), the Minister provided the applicant written notice of the original decision and invited the applicant to make representations about revocation of the original decision. The applicant made representations to the Minister on 6 May 2015, by his migration agent.

7    Section 501CA(4) furnishes a discretion on the Minister to revoke the original decision if: (a) the person makes representations in accordance with an invitation; and (b) the Minister is satisfied: (i) that the person satisfies the character test; or (ii) that there is another reason why the original decision should be revoked. As noted, the applicant made representations and, accordingly, s 501CA(4)(a) was satisfied. There was no dispute that s 501CA(4)(b)(i) was not satisfied; the applicant agreed he did not pass the character test. Accordingly, the only issue before the Minister was whether “there [was] another reason why the original decision should be revoked”. The Minister concluded that there was not.

8    In his statement of reasons for decision, the Minister stated that he had considered all of the information provided by the applicant in his representations and the documents he submitted. The Minister referred to the reasons (or representations) advanced by the applicant as to why the original decision should be revoked, including: the best interests of his minor son; his ongoing relationship with his wife; his understanding of the causal factors of his offending and overcoming the same; his medical issues; the further prosecution he might face if he were returned to his home country (Nigeria); his contributions to the community through being an active and ongoing member of his congregation; the support he had from his family, friends and members of his religious community; the steps he had taken towards rehabilitation; his good prospects of not re-offending and the consequently reduced risk to the Australian community.

9    A significant amount of the argument on appeal was directed to the Minister’s conclusions with respect to the “risk to the Australian community”. This section of the Minister’s reasons provided as follows (emphasis in original):

Risk to the Australian community

50.    In assessing contributory factors, I note that at the time of offending that Mr OGBONNA was using drugs and that it was clear that the offences were committed to assist him in obtaining drugs for his own use.

51.    I note that in his submission Mr OGBONNA advised that he was going through depression and desolation and was addicted to drugs during most of his offending. I have considered Mr OGBONNA’s submissions regarding his troubled background leading to depression. I note his statements that it was due to the side effects he encountered when taking medication for his depression that he attempted to self-medicate by using heroin which ultimately led to drug addiction. This resulted in financial problems leading to Mr OGBONNA participating in criminal activities, namely drug supply.

52.    I acknowledge that in his submission Mr OGBONNA accepts that he has committed serious offences and that there are no excuses for his behaviour.

53.    I note Mr OGBONNA’s submissions and those of his wife that he has rehabilitated.

54.    I note that the judge accepted that Mr OGBONNA had shown contrition through his plea of guilty and the evidence he gave before the court.

55.    I have taken into consideration the Judge’s comments that Mr OGBONNA’s motivation for offending was related solely to his addiction and need to pay drug debts and not out of greed. The Judge found Mr OGBONNA to be genuinely remorseful and considered his attempts following arrests to involve himself in drug counselling, and stated Mr OGBONNA’s ‘prospects of rehabilitation and not re-offending are good’.

56.    I further note the courses that Mr OGBONNA completed while incarcerated, aimed at addressing addictive behaviours, managing stress and rehabilitation. I note that Mr OGBONNA was approved for day and weekend leave while incarcerated and that he was granted parole at the earliest opportunity. I acknowledge Mr OGBONNA’s compliant behaviour in custodial and non-custodial environment.

57.    I note Mr OGBONNA has been offered stable employment and accommodation upon release which may serve as a protective factor to reduce his likelihood of reoffending. However I have also noted that he had this support when he committed his offending.

58.    While noting factors in his favour I also consider that Mr OGBONNA’s rehabilitation has not yet been tested for a significant period outside a custodial environment.

59.    I find that there is a likelihood that Mr OGBONNA will re-offend, albeit a low likelihood. I consider that further offending of a similar nature by Mr OGBONNA could result in physical and/or psychological harm to members of the Australian community. In reaching this finding I have taken into consideration Mr OGBONNA’s expressions of remorse, his insight into the offending, his connections and support, rehabilitative and other courses undertaken to date, as well as his largely positive response to supervision during his incarceration and his overall good behaviour when in immigration detention, together with his prospective employment and plans for the future, while noting that he has not been tested in the community.

10    The Minister’s conclusions as to whether he was satisfied that there was “another reason” to revoke the original decision included:

Conclusion

…

63.     In considering whether, in light of Mr OGBONNA’s representations, I was satisfied that there is another reason why the original cancellation decision should be revoked, I gave primary consideration to the best interests of Mr OGBONNA’s child and have found that their best interests would be best served by the revocation of the mandatory visa cancellation decision.

64.    In addition, I have considered the length of time Mr OGBONNA has made a positive contribution to the Australian community (five years) and the consequences of my decision for his other family members; in particular his wife who has struggled parenting their son alone.

65.    On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the serious nature of the crimes committed by Mr OGBONNA, that of Supply prohibited drug >= large commercial quantity. I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia.

66.    Further, I find that the Australian community could be exposed to great harm should Mr OGBONNA reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr OGBONNA.

67.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr OGBONNA represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his child and other, minor family members, as a primary consideration, and any other considerations as described above. These include his residence and bonds, international non refoulement obligations, employment, and the hardship Mr OGBONNA, his family and social networks will endure in the event the original decision is not revoked.

68.    Having given full consideration to all of these matters, I am not satisfied, for the purposes [of] s 501CA(4)(b)(ii), that there is another reason why the original decision to cancel Mr OGBONNA’s visa should be revoked. Accordingly, I have decided not to revoke the original decision to cancel Mr OGBONNA’s Class UK, Subclass 820 Partner visa.

GROUNDS OF APPEAL

11    The Further Amended Originating Application contains two grounds of appeal:

1.    The Minister’s decision was legally unreasonable in that:

(a)    He decided that the Applicant represented an unacceptable risk of harm to the Australian community, and therefore not to revoke the cancellation of the Applicant’s visa, on the basis that the Australian community could be exposed to great harm should the Applicant reoffend in a similar fashion and that he could not rule out the possibility of further offending by the Applicant (at [66]-[67]) (a logical impossibility);

(b)     The Minister so decided, notwithstanding the finding made by him that the likelihood that the Applicant would re-offend was low (at [59];

(c)    The Minister so decided, notwithstanding the finding made by him that the Applicant had no history of previous offending (at [49]);

(d)     The Minister so decided, notwithstanding the consideration given by him to the findings of the sentencing judge that the Applicant’s prospects of rehabilitation and of not reoffending are good (at [55]), that the sentencing judge considered that the offence was an isolated aberration and that it was unlikely that the Applicant would use drugs again;

(e)     The Minister so decided, notwithstanding the finding made by him that the Applicant had been compliant in the custodial and non-custodial environments which included day and weekend leave (at [56]) and that the Applicant was granted parole at the first available opportunity;

(f)     The Minister so decided, notwithstanding the finding made by him that the Applicant had expressed remorse and insight into his offending (at [59]);

(g)     The Minister so decided, notwithstanding the findings made by him that the Applicant’s offending was committed to assist him in obtaining drugs for his own use (at [50]), rather than greed, and that the Applicant had undertaken rehabilitative courses (at [59]);

(h)     The Minister so decided, notwithstanding the finding made by him that the Applicant had made a positive contribution to the Australian community for 5 years prior to his offending (at [64]); and

(i)     The Minister so decided, notwithstanding the finding made by him that the Applicant has the support of his wife (at [31]), his church groups (at [35]) and his employer which may serve as a protective factor to reduce his likelihood of re-offending (at [57]);

2.    The Minister fell into jurisdictional error by failing to consider or properly consider the information before him relating to the effect of non-revocation of the cancellation of the Applicant’s visa on his family.

Particulars

The Minister, having identified that:

(i)     The Applicant continues to be supported by his wife and they wish to expand their family in the future;

(ii)     The Applicant has medically stored his semen (in Australia) in the hope of having further children (as he became infertile as a result of treatment for his prostate cancer); and

(iii)     The Applicant’s wife and son would not relocate to Nigeria with him;

Did not go on to consider or properly consider the effect of non-revocation of the cancellation of the Applicant’s visa on the Applicant’s family including the ability of the Applicant and his wife to expand their family in the future.

ground one

State of satisfaction under s 501CA(4) and unreasonableness

12    There were two states of satisfaction which might have enlivened the Minister’s discretionary power to revoke the cancellation: (i) a satisfaction that the applicant passed the character test; or (ii) a satisfaction that there was another reason to revoke the original decision. As noted above, the first state of satisfaction was not in issue; the applicant did not contend he passed the character test. As to the second, the Minister was not “satisfied … that there [was] another reason why the original decision should be revoked”: s 501CA(4)(b)(ii).

13    A state of satisfaction which must be reached in order for a discretionary power to be exercised is a jurisdictional fact. If the state of satisfaction reached was affected by sufficient error, the decision made on the basis of that state of satisfaction will be affected by jurisdictional error and liable to be quashed: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [23] and [24], per Gummow ACJ and Kiefel J (dissenting in the result, but not on the statement of principle); see also [122] and [131], per Crennan and Bell JJ (SZMDS).

14    In relation to the kinds of error affecting the formation of opinion sufficient to engage the principle, Gummow ACJ and Kiefel J referred to the use of terms “arbitrary, capricious, irrational” as well as “not bona fide”. Their Honours, at [23], referred to Iacobucci J in Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at 776-777 (Southam) and noted that his Honour had spoken of “decision making upon an assumption which had no basis in the evidentiary material or which was contrary to the overwhelming weight of that material, and also of decisions based upon a contradiction in the processes by which conclusions were reached or upon the drawing of inferences which were not properly open”.

15    Crennan and Bell JJ considered that “illogicality” and “irrationality” would need to be of the same order as a complaint that the decision was “clearly unjust”, “arbitrary”, “capricious” or “unreasonable”. That applied equally to a statutorily mandated existence of a state of satisfaction as to the situation where a statute requires that a state of satisfaction has not been reached. Their Honours stated at [130]-[131] and [135]:

130.    In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

131.    What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. …

135.    On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.

16    The state of satisfaction required to found a valid exercise of power must be formed reasonably and on a correct understanding of the law: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [130]-[137]; Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at [33]; Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [54] (Goundar); Graham v Minister for Immigration and Border Protection (2017) 91 ALJR 890; 347 ALR 350 at [57].

17    It is also well established that a discretionary power conferred by statute is to be construed as subject to the condition that it be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. This principle was applied in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Allsop CJ, Griffiths and Wigney JJ) (Stretton) and in Muggeridge v Minister for Immigration and Border Protection (2017) 351 ALR 153 (Flick, Perry and Charlesworth  JJ) (Muggeridge). In those cases, the jurisdictional fact necessary to enliven the discretion clearly existed but the alleged error was one affecting the process of reasoning adopted in the exercise of the discretionary power – see: Muggeridge at [33] to [35].

18    Muggeridge concerned a decision by the Minister to cancel a visa under s 501(2) of the Act. That section provided the Minister a discretionary power to cancel a visa if he reasonably suspected that a person did not pass the character test and the person did not satisfy the Minister that he passed the character test. Mr Muggeridge accepted that he did not pass the character test. Accordingly, the jurisdictional fact was enlivened.

19    In Muggeridge at [35], the Full Court summarised the relevant principles concerning legal unreasonableness affecting the exercise of a discretionary power in the following way:

The alleged error is one affecting the process of reasoning adopted by the Minister in the exercise of a discretionary power. It is well settled that a discretionary power conferred by a statute is to be construed as subject to the condition that it be exercised reasonably. The principles to be applied are considered at length in the various judgments in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and in the decisions of the Full Court of this Court in Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1. They may be briefly summarised as follows:

(1)    the power conferred under s 501(2) of the Act is implicitly confined by the subject matter, scope and purpose of the legislation: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 (Dixon J);

(2)    as Allsop CJ explained in Stretton (at [11]), the task of reviewing a decision for legal unreasonableness is not definitional, but one of characterisation:

… the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. …

(3)    the Court is to look to the reasons given for the decision to understand why the power was exercised as it was: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437;

(4)    as the Full Court explained in Singh, the process of review of legal unreasonableness “will inevitably be fact dependent”. The Court continued (at [48]):

… That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as ‘intelligible justification’ must involve scrutiny of the factual circumstances in which the power comes to be exercised.

(5)    in a different review context, Deane J spoke of the requirement that a statutory tribunal act rationally and reasonably: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 — 368. His Honour’s explanation of the content of that obligation applies equally to the Minister in the exercise of the power conferred by s 501(2) of the Act (at 367):

When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact.

(6)    nevertheless, as Wigney J said (with respect correctly) in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 (at [55]):

… allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at [66]; SZWCO at [64]-[67].

20    In Elara v Assistant Minister for Immigration and Border Protection [2017] FCA 1565 at [52] and Manihera v Minister for Immigration and Border Protection [2017] FCA 1567 at [41], Barker J considered this analysis was generally relevant to the exercise by the Minister of the power under s 501CA(4). The quality of unreasonableness required to conclude that there was jurisdictional error with respect to the exercise of a discretionary power is in substance equivalent to the quality of unreasonableness required for a conclusion that a state of satisfaction was not formed reasonably.

The decision in Muggeridge

21    Charlesworth J (with whom Flick and Perry JJ agreed) stated in Muggeridge at [41]:

To the extent that a possibility of recidivism was lawfully identified by the Minister on the material before him, it would be open to the Minister to view that possibility as unacceptable so as to outweigh the very strong considerations that favoured a decision not to cancel the visa [or, in this case, the considerations that favoured a decision not to revoke the decision to cancel the visa].

22    In the present case, the Minister concluded at [59] that there was a likelihood of re-offending: “I find there is a likelihood that MR OGBONNA will re-offend, albeit a low likelihood”. This was not the position in Muggeridge, where the finding was: “I find he has demonstrated rehabilitation and consider his likelihood of re-offending to be low”: Muggeridge at [15]. In Muggeridge, the Minister had considered there was only a “possibility of recidivism” rather than a positive likelihood of re-offending.

23    With that modification (a finding of a likelihood of re-offending rather than a possibility of recidivism), paragraph [41] of Muggeridge identifies a point critical to ground one: to the extent that the positive likelihood of re-offending was lawfully identified by the Minister on the material before him, it was open to the Minister to view that likelihood as unacceptable so as to outweigh the considerations that favoured a decision to revoke the visa cancellation. It does not matter that another decision-maker might have reasoned to a different conclusion on the same material; it is not the role of this Court to substitute its view of what would have been reasonable as a matter of merit.

24    In Muggeridge, the Minister had argued that the finding of the possibility of re-offending was supported by two matters: first, the inherently elevated risk that a person previously convicted of a criminal offence may offend again; and secondly, that certain findings of the Minister provided an evident and justifiable foundation for the Minister’s conclusion that the possibility of re-offending could not be ruled out. These arguments were recorded in Muggeridge at [44]:

When asked to identify the facts upon which the Minister concluded that it was possible that Mr Muggeridge might re-offend in a similar fashion, Counsel for the Minister pointed to two features of the reasons. First, reliance was placed on the inherently elevated risk that a person previously convicted of a criminal offence may offend again in the future. Second, it was said that the prior offence findings contained at [14] of the reasons provided an evident and intelligible justification for the Minister’s conclusion that the possibility of Mr Muggeridge re-offending in a similar fashion could not be “ruled out”. Each of these features will be considered in turn.

25    As to the first matter, Charlesworth J rejected that the Minister had engaged in a form of propensity reasoning, stating at [47] and [48]:

47.    If, in the exercise of the discretion, the Minister in fact addresses the question of harm by a process that includes a form of abstract propensity reasoning, the resulting decision could not, on that basis alone, be characterised as legally unreasonable. It is not inconsistent with the purpose of the power conferred by s 501(2) of the Act to reason in that fashion. The Minister’s submissions are to be accepted to that extent.

48.    However, it is not to be presumed that the Minister has reasoned in a particular fashion in a particular case, merely because the manner of reasoning would be permissible.

26    Her Honour held at [49] that the Minister had expressly concluded that Mr Muggeridge had rehabilitated (see Muggeridge at [15]) and that it could not be concluded that the Minister had implicitly found Mr Muggeridge to have the propensities of a past offender to re-offend. At the time of the Minister’s decision, Mr Muggeridge had not re-offended for some 19 years and was expressly found by the Minister to have “demonstrated rehabilitation”. Her Honour noted that, even if the starting point was an unstated presumption that Mr Muggeridge had a propensity to offend, “it is difficult to see how such an unstated concern could have survived the Minister’s express conclusion, properly based on the weight of the evidence, that Mr Muggeridge had demonstrated rehabilitation”.

27    As to the second matter, Charlesworth J concluded that the Minister did not in fact rely on the past offence findings (set out in Muggeridge at [10]) to conclude that the possibility of Mr Muggeridge re-offending could not be ruled out. Her Honour also concluded that those past offence findings did not logically inform the degree of likelihood of Mr Muggeridge offending in a similar manner. Her Honour’s rejection of the second matter put by the Minister is found at [50] and [51]:

50.    Nor is it apparent that the Minister relied on the past offence findings to justify his conclusion that the possibility of Mr Muggeridge re-offending in the same fashion could not be ruled out. The past offence findings do not logically inform the degree of likelihood of Mr Muggeridge re-offending in a similar fashion. As has been said, whilst the Minister was entitled to reason that a person who has previously committed a particular offence might similarly re-offend, that is not the reasoning in fact engaged in by the Minister, whether by reference to the past offence findings or otherwise.

51.    Viewed in the abstract, there might be a logical connection between the past offence findings and the likelihood of similar re-offending had the Minister relied on evidence capable of supporting a conclusion that it was possible that Mr Muggeridge would resume contact with an outlaw motorcycle club. However, of themselves, the past offence findings are not capable of supporting that conclusion, especially in light of the Minister’s express favourable findings toward Mr Muggeridge.

28    Counsel for the applicant submits that the second sentence of [50] in Muggeridge is intended as a statement of general principle – that past offence findings cannot logically inform the degree of likelihood of re-offending in a similar fashion. I reject that submission. Her Honour was rejecting the Minister’s second submission recorded at [44]: the particular past offence findings in the case before the Full Court did not logically inform the degree of likelihood of Mr Muggeridge offending in a similar fashion. That is also made clear by the last sentence of paragraph [51]. Whether past offence findings logically inform the degree of likelihood of re-offending in a similar fashion must depend on the facts of the particular case.

The Minister’s decision in this case

29    As noted above, in the present case the discretion to revoke the cancellation arose if the Minister was satisfied that there was “another reason” (apart from passing the character test) to revoke the cancellation. It was asserted that the “decision” (namely the conclusion that the Minister was not so satisfied) was “legally unreasonable”.

30    At [59] of his reasons for decision, the Minister found that “there is a likelihood that [the applicant] will re-offend, albeit a low likelihood”. This finding was in that part of the reasons which specifically dealt with “risk to the Australian community”. The Minister considered that “further offending of a similar nature by [the applicant] could result in physical and/or psychological harm to members of the Australian community”. Paragraph [59] contains the Minister’s explanation for his finding of “likelihood”.

31    At [66] of his reasons for decision, in the section of the reasons headed “Conclusion” and which summarised the conclusions reached in the various earlier sections of the reasons for decision, the Minister stated: “I could not rule out the possibility of further offending by [the applicant]” and that “the Australian community could be exposed to great harm should Mr Ogbonna re-offend in a similar fashion”. This statement, appearing as it does in the “Conclusion” section of the reasons, is to be read as a reference to, or together with, his earlier findings and reasons for the conclusion at [59] that there was a positive “likelihood … albeit a low likelihood” of “further offending of a similar nature”. The observation that the Minister “could not rule out the possibility of further offending” cannot be read as a finding that there was only a possibility of re-offending rather than a likelihood of re-offending. That interpretation would be directly inconsistent with the reasoned conclusion at [59] that there was a positive likelihood of re-offending. Nor does the sentence mean that literally.

32    The reference to “offending of a similar nature” (at [59]) and “re-offend in a similar fashion” (at [66]) can only be a reference to knowingly taking part in the supply of a large commercial quantity of drugs. The Minister could only have had in mind a risk of that nature because that was the relevant offending and because no other offending which might cause “great harm” to the Australian community was identified.

33    The Minister’s reasons are to be read in accordance with the principles in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang). Applying those principles, the Minister was stating his opinion that, notwithstanding all of the positive aspects which attended the applicant’s situation and the matters which had been referred to by the applicant in his s 501CA “representations” to the Minister, he nevertheless considered the applicant was likely to “re-offend in a similar fashion” because his state of rehabilitation had not been tested for any significant period outside of a custodial environment – see: Minister’s reasons at [58] and [59]. To re-offend in a “similar fashion”, the applicant would need knowingly to take part in the supply of a commercial quantity of drugs. Presumably, the Minister reasoned that the applicant would return to drug use because his rehabilitation (drug abstinence) might not survive once tested for a period outside of a custodial setting. Presumably, the Minister further reasoned that this likely return to drugs was then also likely to lead to the applicant knowingly taking part in the supply of a commercial quantity of drugs. There is no express reasoning to this effect but something to that effect must be presumed because the Minister expressly concluded there was a likelihood that the applicant would again be knowingly involved in the supply of drugs.

34    Counsel for the Minister submitted that this “guardedness” (in fact, the view that it was likely the applicant would re-offend by knowingly taking part in the supply of drugs) on the part of the Minister was justified by material before the Minister and, in written submissions, nominated two aspects of the material said to support that submission. The first was a few particular sentences of a letter written by the applicant’s wife to the Minister, namely the following:

[The applicant] has had a lot of problems with addiction to some drugs … He has tried many times to stop taking drugs but has not been able to stop until he was been sent to prison … I think what my husband desperately needs now is a rehabilitation to help him be confident in himself and abstain from drug intake.

35    It is clear from paragraph [53] of his reasons for decision that the Minister understood the applicant’s wife to have the view “that he has rehabilitated”. The sentences indicate that, in the opinion of the applicant’s wife, ongoing support was desirable. The context was that the applicant’s wife would be providing such support. The Minister accepted, at [59], that the applicant would have support. The Minister did not refer to this letter as something which gave rise to any “guardedness”, less still as being probative of a likelihood of re-offending, but obviously (see reasons at [53]) considered the letter in concluding that the applicant’s wife considered the applicant had rehabilitated, and presumably in reaching his conclusion (at [59]) that the applicant had “connections and support”.

36    The second piece of material referred to was part of a psychological assessment dated 4 June 2013 which included the following passages specifically relied upon by counsel:

[The applicant] stated that he has abstained from all substance use since being remanded, and has recently completed the Getting SMART program to address his future risk of relapse …

Since being remanded [the applicant] has taken steps to address these factors such as abstaining from substance use, and attending programs that are aimed towards managing use behaviours and grief reactions … [The applicant's] prospects for change and reduction of risk appear to be positive, with ongoing support and intervention.

37    This report was prepared after the applicant had been remanded in custody on 4 November 2011 and after he had pleaded guilty on 16 May 2013, but before he was sentenced on 3 March 2014. The Minister’s decision was made on 14 February 2017. The Minister accepted that the applicant had not returned to drug use in the intervening nearly four years. The Minister did not refer in his reasons to this report as inspiring his opinion that there was a “likelihood” that the applicant would return to drug use, leading him to re-offend in a “similar fashion”. The applicant had “ongoing support and intervention” during his incarceration to which the Minster referred at [56].

38    In oral submissions, counsel for the Minister relied on two further matters said to constitute material before the Minister which justified his “guardedness” (that is, the finding of a likelihood of re-offending in a similar fashion). The first was a report dated 7 October 2015 from a consultant psychologist who had been retained by Parish Patience to interview the applicant and assess his current mental state and risk of recidivism. This report contained a number of paragraphs under the heading “Recidivism assessment Christian Ogbonna”. The report expressed the conclusion, at paragraph [84], that: “Based on his Level of Service Inventory (revised) score he would be considered a low risk of reoffending”. This statement was an identification of where the applicant stood on a particular scale – the Level of Service Inventory (revised) – which is a tool used by professionals to assess an individual’s risk of recidivism. That scale was not before the Minister, nor was it before this Court. Reading the report in context, particularly paragraphs [57] to [83], it seems that the applicant was considered to be at the very bottom of the scale.

39    The Minister submitted that the statement at [84] of the report that the applicant was a “low risk of reoffending” was an expert finding which was entirely consistent with the Minister’s findings. Counsel for the Minister argued the Court “would not find that the [Minister’s] finding of a low risk of re-offending was affected by unreasonableness in circumstances where it was supported by expert evidence placed before the Minister”. However, this argument fails to deal with the fact that the Minister’s finding was that “there is a likelihood that Mr OGBONNA would re-offend, albeit a low likelihood”. The statement at paragraph [84] of the psychologist report that the applicant was a “low risk of reoffending” was not a positive statement of opinion that there was a likelihood that he would re-offend; if anything, a natural reading of that sentence when the report is read as a whole is to the opposite effect – that is, that the applicant’s risk of re-offending was as low as the scale contemplated and not a likelihood at all. The report did not support the conclusion that there was a likelihood of re-offending. Of course, the report could be read as recognising a low risk of re-offending, but that proposition does not need an expert report; it is perhaps usually present to some degree and the Minister’s specific finding with respect to the risk to the Australian community was that Mr Ogbonna was likely to re-offend.

40    The second matter put orally as justifying the Minister’s “guardedness”, were the additional conditions which attached to the State Parole Authority’s decision to release the applicant on parole on 3 May 2015. These were:

15.    The offender must, if so directed by the Officer, seek assistance in controlling his abuse of drugs and/or alcohol and must authorise in writing that his medical and other professional and/or technical advisers or consultants make available to the Officer a report on his medical, and/or other conditions at all reasonable times.

16.    The offender must not use, or be in possession of, a prohibited drug or substance.

17.    The offender must undertake testing for drug and/or alcohol use, where facilities are available, at the direction of the Officer.

18.    The offender must, if so directed by the Officer, undergo psychological assessment and counselling at a place or places determined by that Officer and must authorise in writing that his medical and other professional and/or technical advisers or consultants make available to the Officer a report on such assessment and counselling at all reasonable times.

19.    The offender must not associate with his co-offenders without the express prior approval of the Officer.

41    There was nothing in the material before the Minister which suggested that these conditions were unusual or that they were imposed because of a particular perception of likelihood that the applicant would return to drug use or supply. It is not obvious that those conditions justify the Minister’s “guardedness”. It might equally be said that the conditions were a reason why re-offending was unlikely or the risk, which is perhaps present in every case, was mitigated.

42    The foregoing material did not justify a finding of likelihood of re-offending in a similar fashion (knowingly supplying drugs) in the face of the other findings which the Minister had reached.

43    The sole expressed factor which led the Minister to the conclusion that there was a likelihood of re-offending, albeit a low likelihood, was the fact that the applicant’s rehabilitation had not yet been tested for any length of time outside of a custodial environment. There was no other identified basis for concluding that there was a likelihood of re-offending in a similar fashion. Paragraphs [58] and [59], which appeared under the heading “Risk to the Australian community”, stated:

58.    While noting factors in his favour I also consider that Mr OGBONNA’s rehabilitation has not yet been tested for a significant period outside a custodial environment.

59.    I find that there is a likelihood that Mr OGBONNA will re-offend, albeit a low likelihood. I consider that further offending of a similar nature by Mr OGBONNA could result in physical and/or psychological harm to members of the Australian community. In reaching this finding I have taken into consideration Mr OGBONNA’s expressions of remorse, his insight into the offending, his connections and support, rehabilitative and other courses undertaken to date, as well as his largely positive response to supervision during his incarceration and his overall good behaviour when in immigration detention, together with his prospective employment and plans for the future, while noting that he has not been tested in the community.

44    In paragraph [59], the Minister expressly stated what he considered in concluding that there was a likelihood of re-offending:

    Mr Ogbonna’s expressions of remorse,

    his insight into the offending,

    his connections and support,

    the rehabilitative and other courses he had undertaken to date,

    his largely positive response to supervision during his incarceration,

    his overall good behaviour when in immigration detention,

    his prospective employment and plans for the future,

    his not having been tested (for a significant period, see [58]) in the community.

45    Leaving aside the last matter, none of these matters weighed logically in favour of a conclusion of a likelihood of re-offending. There was no probative material before the Minister which suggested that there was a likelihood of reoffending, notwithstanding Mr Ogbonna’s accepted expressions of remorse, his insight into the offending, his connections and support, the rehabilitative and other courses undertaken to date, as well as his largely positive response to supervision during his incarceration and his overall good behaviour when in immigration detention, together with his prospective employment and plans for the future. As to the last matter identified in paragraph [59] for the positive conclusion of a likelihood of re-offending, there was no material which suggested someone who had enjoyed the state of rehabilitation which the applicant enjoyed, was likely to re-offend if they had not been tested for a period in a non-custodial setting. Nor does the conclusion so expressed flow reasonably or rationally, without more, in the face of the other findings referred to in paragraph [59] or the reasons for decision more generally.

46    The Minister was entitled to speculate as to what might happen in the future by reference to evidence of what had occurred in the past: Muggeridge at [36]. In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-5, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said:

In determining whether there was a real chance that Mr Guo would be persecuted for a Convention reason, the Tribunal had no choice but to form an opinion as to what was likely to occur if Mr Guo was returned to the PRC. In the course of determining whether there was a real chance of persecution for such a reason, the Tribunal made findings about past events and the motivation of the Chinese authorities in penalising Mr Guo, as it was entitled and, indeed, bound to do (s 166E(1) of the Act). It then used those findings as the basis for its conclusion that there was no chance of future persecution. But that does not mean that it decided the well-founded fear of persecution issue on the balance of probabilities.

The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.

Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. …

47    The problem in the present case is that the speculation as to what might occur in the future, or the prediction as to those events, was done in a manner which was not supported by probative material and the conclusion of a likelihood of re-offending was logically disconnected from the favourable findings as to why the possibility or risk of recidivism, perhaps present in every case, was low.

48    In SZMDS at [124], Crennan and Bell JJ pointed out that a description of reasoning as “illogical or unreasonable or irrational” may merely be an emphatic way of expressing disagreement with the subject decision. Their Honours also pointed out that a Court should be slow, although not unwilling, to interfere in an appropriate case: at [130]. This is an appropriate case. Having made findings in favour of a low risk of re-offending (by being knowingly involved in the supply of a commercial quantity of drugs), and in the absence of material which could transform that possibility into a probability of re-offending, it was legally unreasonable to conclude that there was a likelihood of re-offending on the sole basis that the applicant’s accepted state of (drug) rehabilitation had not been tested for more than a short period outside of a custodial setting.

49    The Minister’s state of satisfaction or opinion for the purposes of s 501CA(4)(b)(ii) was not formed reasonably and the resulting decision, not to revoke the original decision cancelling the visa, was affected by jurisdictional error and is liable to be quashed. It cannot be said that the error was immaterial, or not critical to, the Minister’s ultimate decision not to revoke the original decision – cf: Muggeridge at [35(6)]. One of the principal reasons (and the only significant one apart from the seriousness of the offence) for refusing to revoke the cancellation was the apparent perception that there was a likelihood, albeit low, of re-offending in a “similar fashion”. It cannot be said that, if the Minister had considered there was only a possibility of re-offending, or a remote possibility, he would have reached the same conclusion. He could not exclude the possibility of further offending because he considered it likely that the applicant would re-offend. The Minister may have reached a different conclusion if his inability to exclude the possibility of further offending was based on something significantly less than a finding of a likelihood of re-offending.

Ground two

50    As refined by written submissions, the applicant’s case on ground two was that the Minister did not “consider the effect of non-revocation of the cancellation of Mr Ogbonna’s visa on the ability of Mr Ogbonna and his wife to have further children”.

51    In his written submissions, the applicant advanced this ground as one of failing to take into account a mandatory consideration. The applicant submitted that, in order for him to succeed he needed to establish that the consideration was a “relevant consideration” in the sense described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40, per Mason J (Peko-Wallsend). It has been accepted that “under s 501CA(4) representations as a whole constitute a mandatory relevant consideration”: Goundar at [56], per Robertson J. His Honour stated, however, that he did “not accept that any particular statement in the representations should be so characterised”.

52    In my view, the argument in the present case would be better framed as a failure to carry out the task required under s 501CA(4). The statutory task under s 501CA(4)(b)(ii) requires consideration of whether there is “another reason” to revoke the visa cancellation; where a reason is sufficiently identified and advanced in the representations, then the discharge of the statutory task requires it to be considered: BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 at [62], [63], [72], per Bromberg and Mortimer JJ. The parties were content for me to deal with the matter on this basis without the formality of an amendment to the notice of appeal.

53    Whichever approach is taken, the ground is not made out here.

54    The applicant submitted that the Minister did not consider, or in the alternative, did not “properly” consider, the effect of his decision not to revoke the applicant’s visa cancellation on the applicant’s ability to have further children with his wife. Whether this is the case depends on the quality of engagement necessary to satisfy the legal standard of having considered a matter – as Kiefel J (as her Honour then was) observed in Tickner v Chapman (1995) 57 FCR 451 at 495:

To “consider” is a word having a definite meaning in the judicial context … It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate.

55    Where a decision-maker is required by statute to consider a matter, the decision-maker must engage in an active intellectual process directed at that matter: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 347 ALR 173 at [45], per Griffiths, White and Bromwich JJ (Carrascalao). The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]. The reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45] quoting Wu Shan Liang at [30]. A conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].

56    The applicant’s request for revocation dated 5 May 2015 stated that the reasons he advanced in favour of revocation would be provided “separately with supporting documentation”. Attached to the request for revocation was a “Personal Details Form” which referred to untreated prostate cancer. A submission dated 19 May 2015 from Parish Patience set out the reasons advanced in favour of revocation. This is the document which relevantly brought together the applicant’s “representations”. That submission does not refer to a desire to have further children. The submission attached a number of supporting documents. This included a letter from the applicant’s wife which did not refer to a desire to have further children.

57    A year later, on 9 May 2016, the applicant provided a letter which referred to the storage of his semen to enable him to have children in the future. This letter was before the Minister when he made his decision. It included: “My wife and I have decided to do this because we had [a] series of miscarriages in the past, therefore the only solution left for us now is to have my semen stored for IVF”. The context in which the letter was written was that it was providing an explanation as to why the applicant had not attended (prostate) surgery which had been scheduled for 16 December 2015. The reason given in the letter was to the effect that the applicant had not been informed that he would have to pay for the storage of his semen and time was needed to arrange for funds for this purpose. The surgery was put off to 25 May 2016. The letter was not written expressly to advance the desire to have more children as a reason for revocation. Nevertheless, the fact that semen was to be stored and the purpose of doing so was brought to the Minister’s attention.

58    The submission to the Minister prepared by a government department officer for the purpose of the Minister making his decision contained the following:

Impediments to return

…

25.     Mr OGBONNA was due to have surgery for prostate cancer in December 2015 but nominated to postpone that temporarily. He writes that upon realising he was responsible for the cost of semen storage he opted to delay the scheduled operation, enabling him and his wife to obtain the funds and retain the possibility of having more children … He has since had that surgery while in immigration detention.

59    It is tolerably clear that the point of this paragraph was to indicate that it was no longer an impediment to the return of Mr Ogbonna to Nigeria that he had not yet had his foreshadowed prostate surgery. I note also that the submissions from Parish Patience which address impediments to a return to Nigeria expressly raise the point that the applicant might not be able to get appropriate treatment if returned to Nigeria. Nevertheless, the possibility of having more children was referred to, even if not as an express ground for revocation.

60    The Minister considered the issue. This is sufficiently clear from the following passages contained in the Minister’s reasons for decision:

31.    Mr OGBONNA has family and social ties to Australia. In 2008 Mr OGBONNA married an Australian citizen … and the couple have a young son. Mr OGBONNA continues to be supported by his wife and they wish to expand their family in the future. To this end, My OGBONNA has medically stored his semen in the hope of having further children, as he became infertile as a result of treatment for his prostate cancer. …

34.    I have considered the effect of non revocation upon Mr OGBONNA’s immediate family in Australia and accept that those persons would experience emotional hardship.

61    There are also references to the effect of the decision on the applicant’s family in the Minister’s reasons at paragraphs [64] and [67].

62    The degree to which the Minister must engage with an issue to satisfy the principles in Carrascalao and the manner in which his reasons are to be read in accordance with the principles in Wu Shan Liang are informed by the manner in which the issue was raised. The Minister’s consideration of, or engagement with, the issue was adequate in light of the particular way in which the matter was advanced. The Minister dealt with the issue at a similar level of generality and specificity with which it can be found in the material provided by the applicant. It cannot be said that the Minister failed to undertake the task contemplated by s 501CA(4) by reason of the way in which he dealt with this issue. If (which I doubt) the matter is appropriately viewed through the lens of mandatory considerations in the Peko-Wallsend sense, the matter was sufficiently taken into account.

CONCLUSION

63    Ground one of the appeal is made out. Ground two is not.

Associate:

Dated:    7 May 2018