FEDERAL COURT OF AUSTRALIA

Griffiths v Minister for Immigration and Border Protection [2018] FCA 629

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    This appeal is from an ex tempore judgment dated 9 March 2017 of the Federal Circuit Court of Australia (FCCA). The judgment is reported as Griffiths v Minister for Immigration and Border Protection (No 2) [2017] FCCA 441. For completeness, I should state at the outset that the appellant is unrelated and unknown to me.

2    This is one of many cases coming before this Court, in either its original jurisdiction or on appeal, involving a challenge to a Ministerial decision refusing to revoke the mandatory cancellation of a person’s visa on character grounds. A decision not to revoke a visa cancellation decision invariably affects, often in a profound and irreversible way, a range of deep human interests and values. As Brennan J observed in Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; 2 ALD 634 at 638:

The way in which executive power is exercised, whether sternly or leniently, helps to mould the character of society; and the manner in which the deportation power is exercised is eloquent to reveal, particularly to Australia's migrant and ethnic communities, an important aspect of this nation's attitude to immigrants and aliens. The manner of its exercise shows the security which immigrants and aliens have in their residence here and the circumstances in which that security is likely to be forfeited; it shows the security with which an Australian on the one hand, and an immigrant or alien on the other, may build their relationships and join their lives, and the circumstances in which the relationship is liable to be ruptured. "Good government", as I understand Smithers J to use the phrase in his judgment in Drake's case…has to do with balancing the protective effect of a deportation order with those other effects which an order invariably has upon the person to be deported, upon those directly affected by the proposed deportation and upon the community at large. And good government is, of course, in the best interests of Australia.

Justice Brennan’s observations were directed to the Minister’s power to order deportation under s 12 of the then Migration Act 1958 (Cth), but they apply with equal force to the current statutory regime. Difficult and complex issues are raised when the Minister or a delegate has to decide whether or not to revoke a mandatory visa cancellation decision. A potentially wide range of competing, if not conflicting, considerations have to be weighed. Some of those matters affect the liberty and values of Australian society, while others affect its protection. It is of fundamental importance that the relevant power be exercised consistently and rationally. Ultimately, the Minister must bear political responsibility for the exercise of the power in any particular case.

3    The scope of judicial review of the Minister’s decisions in this area is relatively well defined. The Court does not have the power to review the Minister’s decisions on their merits. The Court’s powers of review are more limited, in the exercise of both the Court’s original and appellate jurisdiction.

4    The Court may disagree, perhaps even strongly, with the merits of a particular exercise of the Minister’s power in a particular case, but it is essential to the rule of law and the legitimacy of the Court’s function that the boundaries of judicial and appellate review be observed.

Summary of background facts

5    Mr Griffiths is a citizen of the United Kingdom who arrived in Australia on 6 May 1969. He has been granted various resident return visas, the last of which was granted to him on 18 October 1995. Mr Griffiths is not an Australian citizen, but his elderly and frail mother is.

6    On 18 May 2015, Mr Griffiths was convicted of the offence Assault Occasioning Actually Bodily Harm and sentenced to 12 months imprisonment with a non-parole period of 9 months.

7    On 2 November 2015, Mr Griffiths was given notice by the Department of Immigration and Border Protection that his Class BB Subclass 155 Five Year Resident Return visa had been mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act). He was invited to make representations about whether that decision should be revoked. Mr Griffiths took advantage of that invitation and provided both submissions and evidence in support of his request that the decision be revoked. Mr Griffiths’ migration agent lodged further written submissions and evidence. On 7 December 2015, Mr Griffiths lodged a further written submission in support of his revocation request.

8    During the course of the consideration of the revocation request, Mr Griffiths was provided by the Department with certain information on 14 September and 3 November 2016 respectively, which Mr Griffiths responded to with comments on 1 October and 6 November 2016 respectively.

9    The Assistant Minister (Minister) decided on 14 December 2016 that the visa cancellation decision should not be revoked. Detailed reasons were provided in support of that decision. It is unnecessary to summarise that statement in great detail. The Minister noted in the statement that Mr Griffiths had made representations about revocation of the visa cancellation decision. The Minister regarded the representations made by Mr Griffiths as being representations for the purposes of s 501CA(4)(a) of the Act.

10    There are numerous references in the statement of reasons to the representations, documents and submissions made by or on behalf of Mr Griffiths as to why the visa cancellation decision should be revoked. They include references to his long-term residence in Australia of 47 years, his connections with Australia having grown up here, his mother (who resides in Australia) being the only member of his family with whom he has a current relationship, and that it would be devastating on his mother if he were to be removed because she is 71 years old, unwell and he is her primary carer. The Minister also noted that Mr Griffiths is an only child and his mother did not have any other family in Australia on whom she could depend.

11    The Minister referred to Mr Griffiths suffering from Addison’s Disease, and that he had worked in Australia for over 25 years until he became too ill to work. The Minister referred to Mr Griffiths’ community work through various clubs and charitable donations. Reference was made to the limited family connections Mr Griffiths had in the United Kingdom and his statement that he had no ties in England and no place to live, as well as being unable to work because of his illness.

12    The Minister referred to Mr Griffiths’ submission that all of his recent offending stemmed from a troubled relationship with a former partner with whom he had no current ties and no planned future ties as he would be living with his mother.

13    The statement of reasons contains detailed references and assessment by the Minister of other submissions made by or on behalf of Mr Griffiths concerning the strength, nature and duration of his ties to Australia, the extent of the impediments that he would face in the United Kingdom if he were removed there, Mr Griffiths’ criminal record and the need to protect the Australian community, the risk Mr Griffiths posed to the Australian community, Mr Griffiths’ past failure to abide by conditions of several Court orders, Mr Griffiths’ expressions of remorse and his acceptance of responsibility for his actions.

14    In deciding not to revoke the visa cancellation decision, the Minister said that he had concluded that Mr Griffiths represents an unacceptable risk of harm to the Australian community and the protection of the Australian community outweighed matters which were favourable to Mr Griffiths as described in the statement of reasons. Those favourable matters included Mr Griffiths’ lengthy residence and bonds to Australia, his work history and participation in volunteer and charitable causes, his familial and social ties to Australia, the hardship to him, his family and social network if he were removed from Australia and, in particular, the hardship which his aged mother would experience.

The FCCA proceeding

15    Mr Griffiths represented himself in the FCCA proceeding. The primary judge considered that Mr Griffiths raised 24 grounds of review, which are set out in [41] of the primary judgment and need not be repeated here.

16    At the commencement of the hearing in the FCCA Mr Griffiths sought an adjournment on various grounds, including his health and that he had had an operation a week before. Mr Griffiths also relied upon his expectation that his matter would be adjourned pending the Full Court’s decision in the appeal from Collier J’s decision in Tesic v Minister for Immigration and Border Protection [2016] FCA 1465 (Tesic). The adjournment request was opposed by the Minister.

17    The primary judge refused to adjourn the matter. He accepted the Minister’s submission that an adjournment “would be of no utility and would not be in the interests of the parties and would only utilise limited Court time and add to the costs of the respective parties”. His Honour also stated in [51] that “Tesic was distinguishable on the basis that the Assistant Minister’s reference to the term “principle” was merely a statement of general policy or expectation and not a statement of law.

18    The primary judge summarised the oral submissions made by Mr Griffiths and his reasons for rejecting those submissions. The primary judge admitted into evidence, subject to relevance, a statutory declaration and letter which were not before the Minister relating to the offence that occurred on 13 September 2012. His Honour then ruled, however, that the statutory declaration was not relevant because it was not before the Minister and “cannot give rise to any jurisdictional error by the Assistant Minister” (at [59]).

19    The letter is dated 3 March 2014 and was written by Mr Griffiths’ former partner. It asked for the charges against him to be dropped. The primary judge ruled that the letter was not relevant because it was not before the Minister and “it is not a document that can establish any error by the Assistant Minister” (at [60]).

20    The primary judge then gave reasons why he rejected each of the 24 grounds of review which he considered had been raised by Mr Griffiths.

21    The primary judge found that Mr Griffiths had not established any jurisdictional error nor any procedural unfairness, hence his judicial review application was dismissed, with costs.

The notice of appeal

22    Mr Griffiths represented himself in the appeal. His grounds of appeal were as follows (without alteration):

(1)    Not appointed a Court lawyer by Judge Street

(2)    The immigration lawyer informed me that they were seeking an adjournment pending the outcome of tesic v Minister for Immigration and then changing that on the day of court

(3)    minister relied on the “principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia”. This is an error of law and it influenced the decision making process of the minister.

(4)    Not Having a Court appointed lawyer, and having to represent myself gave unfair advantage to the ministers lawyers and I was to nervous and forgot things I wanted to say

23    The relief sought by Mr Griffiths included an order that the Court appoint a lawyer to represent him in the appeal.

Mr Griffiths’ submissions summarised

24    Mr Griffiths filed an outline of written submissions, the contents of which were both typed and handwritten and may be summarised as follows, noting that it appears to raise many new grounds of appeal.

25    Mr Griffiths relied upon the Full Court’s decision in Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200 (Muggeridge). It was held there that the Minister’s decision to cancel a visa there under s 501(2) of the Act was affected by legal unreasonableness because of the lack of an evident and intelligible justification for a critical step in the Minister’s reasoning process. That finding related to the fact that the Minister evaluated the risk of Mr Muggeridge’s re-offending in a way that was acutely fact dependent (namely the likelihood of Mr Muggeridge resuming contact with an outlaw motorcycle gang and offending in a similar fashion to what he had done previously). The Court found that the Minister’s reasoning on the issue of risk could not be reconciled with his express findings concerning Mr Muggeridge’s rehabilitation, medical condition and absence of any connections with motorcycle clubs for more than two decades.

26    Mr Griffiths submitted that the “key points” arising from Muggeridge were that Mr Muggeridge had been previously deported from Australia to New Zealand for drug and outlaw motorcycle gang offences (for which he served four and a half years in gaol), he then returned to Australia using a false name and false passport and that he was then “allowed” to stay in Australia.

27    Mr Griffiths relied upon Logan J’s decision at first instance in Stretton v Minister for Immigration and Border Protection (No 2) [2015] FCA 559 (Stretton first instance). He submitted that his case also involved the exercise of discretion by the Minister which was in excess of what was necessary for the purpose it served. As will shortly emerge, the difficulty with this submission is that Logan J’s decision was reversed on appeal by the Full Court in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 (Stretton on appeal).

28    Mr Griffiths’ submissions in relation to his other proposed grounds of appeal may be summarised as follows:

1.    The Minister’s decision was irrational in circumstances where Mr Griffiths has lived in Australia for 49 years, has not lived in England since 1969, has no ties or family support there and his criminal record all relates to a difficult relationship he had with one particular woman.

2.    It was irrational of the Minister to find that Mr Griffiths had a low chance of re-offending but also by reason that he might enter into another relationship and repeat his conduct in circumstances where his criminal record all related to the particular woman who was an alcoholic and Mr Griffiths had no other domestic violence record.

3.    There was no reference in the Minister’s statement of reasons to the fact that Mr Griffiths was going back to work, and had worked full time while in custody as the leading-hand carpenter for demountable school classrooms.

4.    The Minister’s decision was disproportionate having regard to the fact that Mr Griffiths’ criminal record was just over the 12 months threshold to trigger mandatory cancellation of his visa.

5.    The delay between Mr Griffiths’ offences and the Minister’s decision was “unacceptable”.

6.    The Minister failed to take into account and acted irrationally concerning Mr Griffiths’ former partner’s lack of credibility.

7.    The primary judge erred in not adjourning Mr Griffiths’ case in the FCCA when the Tesic decision was on appeal and it was irrational and rushed for the primary judge to then give his decision ex tempore.

8.    It was irrational for the Minister not to take into account the full impact on Mr Griffiths’ mother if he was prevented from being her carer.

9.    It was unfair and irrational for the Minister to take a personal decision in this matter, as opposed to leaving it to a delegate in respect of whose decision Mr Griffiths would have been able to appeal to the Administrative Appeals Tribunal.

10.    Mr Griffiths was an absorbed person within the meaning of s 34 of the Act.

11.    Mr Griffiths queried whether s 501(3A) actually authorises or requires his detention.

12.    Mr Griffiths said that he wished to apply for a criminal justice certificate to prevent his removal because he had a court case against the Commonwealth for compensation arising from an incident at the Villawood Detention Centre.

13.    The Minister’s finding that Mr Griffiths had a predilection for alcohol was inconsistent with the evidence, including a report from the drug and alcohol counsellor from parole and probation who found that Mr Griffiths did not have a problem with substance or alcohol abuse.

14.    Mr Griffiths repeated his reliance upon the Full Court’s decision in Muggeridge.

15.    The Minister acted irrationally in his consideration of the fact that Mr Griffiths suffered from Addison’s Disease and needed to remain in Australia to receive the best medical treatment given that the disease is so rare.

16.    Mr Griffiths repeated his reliance upon Logan J’s decision in Stretton at first instance.

17.    The Minister erred when he found in [43] of his reasons for decision that Mr Griffiths had done a 20 week anger management course in goal when in fact the course was done as a result of a court order and when Mr Griffiths was on parole and probation in the community.

18.    Judge Street erred when he said in [28] of his reasons for judgment that the Minister had referred to a statement by Mr Griffiths’ former partner that he had learned his lesson and would no longer get involved in dysfunctional relationships, when this reference was made by Mr Griffiths’ immigration lawyer and not the Minister.

19.    With reference to the Minister’s finding that Mr Griffiths had a disregard for Australian laws and disrespect for authority by breaching seven AVOs, Mr Griffiths submitted that this was irrational because this conduct was all attributable to a single dysfunctional relationship and Mr Griffiths had otherwise been a law-abiding citizen for 49 years and had been a model prisoner.

20.    It was irrational for the Minister to find that Mr Griffiths had not been tested in the community since his last offence when he had been granted parole and probation. Mr Griffiths submitted that he had not otherwise been tested because he had been put in immigration detention before his prison release date.

21.    The findings of fact relating to Mr Griffiths’ alcohol consumption were irrational because the amount of alcohol he was supposed to have drunk was physically impossible.

22.    The Minister failed to take into account the alleged inadequacy of Mr Griffiths’ legal representation in the criminal proceedings.

23.    It was irrational that the Minister did not take into consideration that Mr Griffiths’ conduct all stemmed from his dysfunctional relationship with his former partner.

24.    This paragraph number did not appear in Mr Griffiths’ outline of submissions.

25-27.    The Minister failed to take into account and acted irrationally in not considering the evidence of a third person who was present when the primary offence occurred and the primary judge erred in ruling that a letter from the third person was inadmissible. Furthermore, the Minister erred in not taking the former partner’s letter into account after the visa cancellation decision was made. The Minister should have taken into account inconsistencies in the statements of Mr Griffiths’ former partner, who was “a good liar”.

28-29.    Mr Griffiths alleged that the Minister had not spent enough time considering his case and had understated the harrowing time Mr Griffiths had spent in detention at Villawood, where he had witnessed the death of another man, suffered a personal injury and witnessed another detainee being raped by two male detainees.

29    Mr Griffiths elaborated upon these submissions in his oral address. He also drew the Court’s attention to Thawley J’s recent decision in Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620 (Ogbonna) as an illustration of the application of the principles in Muggeridge.

The Minister’s submissions summarised

30    The Minister’s submissions may be summarised as follows. First, the applicant required leave to rely upon many of the proposed grounds of appeal because they were not run below. The Minister submitted that leave should be refused because the proposed grounds had insufficient prospects of success.

31    As to grounds 1 and 4 in the notice of appeal, which relate to legal representation, the Minister emphasised that there was no right to legal representation in judicial review proceedings, citing Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; 101 FCR 20 at [27], [32] and [36] per Sackville, Marshall and Lehane JJ and Hui v Commonwealth [2011] FCA 69 at [6] per Wilcox, Weinberg and Conti JJ to support the submission that the pro bono referral system provided by the Federal Court Rules 2011 (Cth) is not a system of de facto legal aid.

32    As to ground 2 and the refusal by the primary judge to adjourn the FCCA proceeding, the Minister submitted that there was no error in the primary judge’s decision, particularly in circumstances where it was evident that the primary judge accepted the Minister’s submission that Tesic was distinguishable.

33    As to ground 3, and the reference to the “privilege of remaining in Australia”, the Minister submitted that the primary judge did not err in regarding that reference as not involving a principle of law, but rather as a statement of general policy.

34    The Minister grouped the other grounds raised in Mr Griffiths’ written submissions and responded to them as follows.

(a) Unreasonable, illogical or irrational (paragraphs 1-2, 4, 13-14, 16-17. 19-21, 23, 29)

35    The Minister submitted that Muggeridge is distinguishable on the basis that the Minister here made no positive finding in respect of Mr Griffiths’ rehabilitation and the Minister’s evaluation of Mr Muggeridge’s prospects of re-offending was found by the Full Court to be “acutely fact dependent”.

36    The Minister submitted that Mr Griffiths’ reliance on Stretton at first instance was misconceived and failed to take into account the reversal of Logan J’s decision in Stretton on appeal.

(b) Failure to consider a relevant consideration (paragraphs 3, 6, 8, 15, 22, 25 and 27)

37    The Minister submitted that he did take into account the appellant’s work as a carpenter while he was a prisoner and on parole, drawing attention to [44] and [48] of his reasons for decision. Moreover, the evidence regarding the withdrawal of charges by Mr Griffiths’ former partner was not before the Minister when he made his decision and cannot, therefore, be a relevant consideration. The Minister further submitted that he did have regard to Mr Griffiths’ claim that he was inadequately represented in a criminal proceedings, citing [35] of the reasons for decision. The Minister contended that it was reasonably open to him to accept the findings of the criminal court that the alleged assault by Mr Griffiths occurred in the way claimed by his former partner and the police evidence.

38    The Minister submitted that the primary judge was correct to hold that due regard had been given to the health of Mr Griffiths’ mother and the effect on her of his removal from Australia, as well as Mr Griffiths’ own health issues.

(c) Complaints about procedure (paragraphs 5, 9, 11 and 12)

39    The Minister submitted that the unfortunately long period Mr Griffiths has spent in immigration detention is regrettable but does not reveal jurisdictional error. Nor is there any such error in the fact that the Minister chose to determine the matter personally, rather than leave it to a delegate. The Minister added that Mr Griffiths’ stated intention to apply for a criminal justice certificate was not a proper ground of appeal.

(d) Absorbed person claims (paragraph 10)

40    The Minister defended the primary judge’s finding that Mr Griffiths did not meet the definition of being an absorbed person under s 34 of the Act because he had left Australia on several occasions, namely in 1988, 1992 and 1995. He added that, in any event, an absorbed person visa is merely a permanent resident visa and does not constitute Australian citizenship.

(e) Miscellaneous matters (paragraphs 18 and 26)

41    The Minister accepted that the primary judge incorrectly stated that it was Mr Griffiths’ former partner, rather than his migration lawyer, who said that Mr Griffiths had learnt his lesson and would no longer get involved in a dysfunctional relationship, the Minister submitted but this error was immaterial to a judicial review challenge to the Minister’s decision. The Minister also defended the primary judge’s ruling not to admit the third person’s statutory declaration on the basis that it was not before the Minister when he made his decision.

(f) Failure to give proper consideration (paragraph 28)

42    The Minister submitted that there is no material to make good any claim that he did not give “active intellectual consideration” to the materials which were before him and that Mr Griffiths’ assertion to the contrary was “vague, unsupported by any evidence, and has not been particularised whatsoever”.

Consideration and disposition of the appeal

43    In the circumstances of this case, Mr Griffiths should have leave to raise all his proposed grounds of appeal. That is primarily because an assessment of the prospects of grounds which were not run below would involve roughly the same effort and time as that required to hear and determine those grounds on a final basis. I also take into account that Mr Griffiths represented himself, both below and in the appeal.

44    It is convenient to address each of the matters relied upon by Mr Griffiths by adopting the same structure as did the Minister in his outline of written submissions.

Grounds 1 and 4 of the notice of appeal

45    Mr Griffiths’ complaints concerning his lack of legal representation must be rejected for the reasons advanced in the Minister’s submissions and by reference to the case law there cited. A person in Mr Griffiths’ circumstances has no legal or enforceable right to legal representation in judicial review or related proceedings. Nor does he have any legal or enforceable right to require this Court or the FCCA to refer his matter for pro bono legal representation.

46    No doubt Mr Griffiths would have preferred to have had legal representation even though, on my observations, he personally presented his case soundly and coherently.

Ground 2

47    No appealable error has been established in relation to the primary judge’s refusal to adjourn the proceeding below pending the outcome of the appeal in Tesic. It was open to the primary judge to conclude that Mr Griffiths’ case was distinguishable from Tesic, with particular reference to the observations of Burley J in Wozniak v Minister for Immigration and Border Protection [2017] FCA 44, where the Minister’s statement of reasons contained an identical statement in the statement of reasons here.

Ground 3

48    This ground should also be rejected, for similar reasons to those given in relation to ground 2. No appealable error has been demonstrated in respect of the primary judge’s finding that the Minister’s reference to the “privilege” of remaining in Australia was to be viewed not as a statement of a principle of law, but rather as a general policy statement.

(a) Unreasonable, illogical or irrational (paragraphs 1-2, 4, 13-14, 16-17, 19-21, 23, 29)

49    Mr Griffiths’ reliance on Muggeridge is at the forefront of this aspect of his appeal. As noted above, Mr Griffiths also relied upon Ogbonna. At first glance, these authorities appear to support Mr Griffiths’ claim that the Assistant Minister has fallen into jurisdictional error. It might be noted that neither of these decisions was available when the primary judge rejected Mr Griffiths’ judicial review challenge. It is desirable to say something more about each of those authorities and to explain why, on closer analysis, they are distinguishable from Mr Griffiths’ circumstances.

50    Mr Muggeridge was born to Australian citizens, but was adopted by a New Zealand couple when he was a child and raised there as a New Zealand citizen. He returned to Australia when aged 22 and was reunited with his birth parents. He lived in Australia for about eight years but was deported from Australia on 30 April 1994 by reason of his participation in a major criminal enterprise run by an outlaw motorcycle club which was involved in the supply of prohibited drugs. In 1997, Mr Muggeridge returned to Australia using a fraudulently obtained passport and under a different name. He lived in Australia for 19 years using that false identity.

51    Mr Muggeridge’s visa was cancelled, taking into account his disregard for Australia’s criminal and immigration laws. Although he had not offended for 19 years, the Minister concluded that there was a low likelihood of him re-offending. In reaching this conclusion the Minister took into account the material before him which indicated that Mr Muggeridge was a family man who was active in his local church and had shown charity to the less fortunate. The Minister made clear, however, that he had also taken into account the fact that Mr Muggeridge had returned to Australia on a fraudulently obtained passport. He found that if Mr Muggeridge engaged in further drug-related offending, it could result in serious harm to the Australian community.

52    In the concluding paragraphs of the statement of reasons concerning Mr Muggeridge, the Minister said that, in terms of Mr Muggeridge’s rehabilitation, he accepted that Mr Muggeridge no longer appeared to be affiliated with any outlaw motorcycle clubs and had not re-offended in 19 years. He added, however, that the Australian community could be exposed to great harm should Mr Muggeridge resume contact with any outlaw motorcycle club and re-offend in a similar fashion. He said that he could not rule out the possibility of further offending by Mr Muggeridge. He said that the Australian community should not tolerate any further risk of harm.

53    Mr Muggeridge’s judicial review challenge was unsuccessful at first instance. He appealed that decision. He argued that the primary judge erred by failing to find that the decision to cancel his visa was affected by jurisdictional error because it was unreasonable in a legal sense. That ground was successful. Justice Charlesworth (with whom Flick and Perry JJ agreed) acknowledged that it was a matter for the Minister to determine whether the risk presented to the Australian community were Mr Muggeridge to re-offend was or was not “unacceptable”. In making that determination the Minister had to weigh competing considerations. The ground upon which the appeal succeeded, however, was the lapse in logic concerning the Minister’s finding that there was a possibility that Mr Muggeridge might re-offend in a similar fashion.

54    The essence of Charlesworth J’s reasoning is reflected in [49] and [55] of her Honour’s reasons for judgment:

49    On the facts of the present case, the Minister made express findings to the effect that Mr Muggeridge had not committed any offence since 1991, that he was fully engaged in his community, charitable and church activities, that he had loving family relationships, that he had explained his past offending by reference to his age and circumstances, that he had expressed remorse and that there was no evidence that he has had any affiliation with any outlaw motorcycle clubs since his return to Australia in 1997. Critically, on the basis of those facts, the Minister made a positive finding that Mr Muggeridge had demonstrated rehabilitation. In light of those concrete factual findings and the conclusion drawn from them, it cannot be concluded that the Minister implicitly found Mr Muggeridge to be a person having the propensities of a past offender to re-offend. Even if the starting point of the Minister’s reasoning 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.

…

55    Although the Minister was not required to evaluate the risk of Mr Muggeridge re-offending in any particular way, the Minister did in fact embark upon an evaluation of Mr Muggeridge’s prospects of re-offending in a way that was acutely fact dependent. The reasoning adopted by the Minister in this case logically required an assessment to be made of the likelihood that Mr Muggeridge would resume contact with an outlaw motorcycle club and so offend “in a similar fashion” and thus cause “great harm”. In light of the Minister’s findings concerning Mr Muggeridge’s rehabilitation, his debilitating spinal injury and the lack of evidence of any affiliation with any outlaw motorcycle club since his return to Australia, the reasons do not provide any logical basis for concluding that there was a possibility that Mr Muggeridge would resume contact with such a club.

55    These passages from Charlesworth J’s judgment reveal that the outcome in Muggeridge was very much dependent upon the particular findings of fact and reasoning of the Minister in that particular case. The same comments apply to Ogbonna.

56    In Ogbonna, the applicant challenged by way of judicial review the Minister’s decision refusing to revoke a mandatory cancellation decision. The Minister found that the applicant posed a risk to the Australian public because there was a likelihood, albeit, a low likelihood, that he would re-offend in a similar fashion to previously, by knowingly taking part in a supply of a large commercial quantity of drugs. In reaching this conclusion, the only identified factor relied upon by the Minister in finding that there was a positive likelihood of re-offending was the fact that Mr Ogbonna’s drug rehabilitation had not been tested for a significant period outside a custodial environment.

57    The Minister’s decision was set aside on the basis of jurisdictional error relating to the legal unreasonableness of the Minister’s reasoning which underpinned his conclusion that there was a likelihood, albeit low, of Mr Ogbonna re-offending in a similar fashion. In reaching that conclusion, Thawley J applied the principles in Muggeridge. It is desirable to set out [44], [45] and [49] of his Honour’s reasons for judgment:

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.

…

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.

58    In Ogbonna, Thawley J concluded that the Minister’s analysis (or speculation) as to what might occur in the future was done in a manner which was not supported by probative material and, moreover, the Minister’s conclusion that there was a likelihood of Mr Ogbonna re-offending was logically disconnected from favourable findings as to why the possibility or risk of recidivism was low (at [47]).

59    Unlike the position in both Muggeridge and Ogbonna, in Mr Griffiths’ case, the Assistant Minister identified in his statement of reasons various matters which underpinned his conclusion that Mr Griffiths might re-offend even though it was found that that likelihood or risk was low. Those matters included:

1.    notwithstanding that Mr Griffiths’ domestic violence offences arose from particular difficulties with his former partner, this did not rule out the possibility of further similar offending in the event that he formed other close personal relationships;

2.    the finding that, despite Mr Griffiths’ claims that he did not drink much, there was evidence in Court to the contrary and that “his predilection for alcohol could again induce him to behave violently in future in similar circumstances”;

3.    notwithstanding the anger management course he had undertaken, Mr Griffiths was subsequently convicted of similar offending;

4.    the absence of any supporting documentation that he did not have a drug or substance abuse problem; and

5.    Mr Griffiths’ criminal history included seven contraventions of AVOs, which manifested a disregard for Australian laws and a lack of respect for authority.

60    Having regard to these matters, Muggeridge and Ogbonna are distinguishable because there is no logical disconnection between the Assistant Minister’s findings and analysis concerning Mr Griffiths’ personal circumstances and his conclusion that there was a likelihood, albeit a low likelihood, that Mr Griffiths will reoffend (see at [51] of the statement of reasons).

61    The other matters raised by Mr Griffiths in support of his claims that the Minister’s decision was unreasonable, illogical or irrational relate to the Minister’s consideration and findings in respect of Mr Griffiths’ criminal record and the connection between that record and Mr Griffiths’ dysfunctional relationship with his former partner. It is plain on the face of the statement of reasons that these matters were considered by the Assistant Minister but, for reasons which are summarised in [59] above, the Assistant Minister explained why the weight he gave to those matters was not as strong as Mr Griffiths would prefer.

62    It was not irrational for the Minister to reason that, if Mr Griffiths was to enter into another relationship and commit domestic violence, great harm could result to a member of the Australian community (even if there was only a low risk of recidivism). That reasoning is not illogical or unreasonable having regard to Mr Griffiths’ criminal history. It is clear that the Minister turned his mind to Mr Griffiths’ submissions that he had no other record of domestic violence arising from any other relationship and that his offences arose from the particular difficulties of his relationship with his former partner (see, for example, [40] of the statement of reasons). Nevertheless, the Minister concluded that this did not rule “out any possibility of further similar offending, should he form any other close personal relationships, though I acknowledge that the likelihood of this occurring would be lower in the future” (also at [40]). This reasoning is not illogical, irrational or unreasonable and the primary judge did not err in rejecting this aspect of Mr Griffiths’ judicial review claim.

63    Similarly, it was not irrational or unreasonable for the Minister not to revoke the mandatory visa cancellation because the sentence of 12 months imprisonment was just over the threshold to attract the operation of s 501(3A) of the Act. This fact was plainly taken into account by the Minister. It was reasonably open to the Minister to reach the conclusion that he did for the reasons that he gave as to why he would not revoke the cancellation decision notwithstanding that there were some matters in favour of doing so but, in the Minister’s judgment, they were outweighed by other considerations. The weight which the Minister gave to the range of considerations was largely a matter for him. I do not consider this to be one of those relatively rare cases on judicial review which warrants judicial intervention on the ground of unreasonableness or illogicality.

64    As to the matter of Mr Griffiths’ consumption of alcohol, I do not consider that the Minister’s reasoning discloses jurisdictional error, nor do I accept that the Minister’s findings in relation to this subject lacked supporting evidence. The Minister noted at [38] that Mr Griffiths had had some prior criminal history with offences of drink driving between 1983 and 1991 and that the Court transcripts on 18 May 2016 and 16 November 2012 revealed that his offending was related to “alcohol abuse” (at [41]). Furthermore, in [41] the Minister noted Mr Griffiths’ claim that he does not drink much because of his Addison’s Disease, but found that this was inconsistent with the evidence given in the Local Court. The Minister concluded that “his predilection for alcohol could again induce him to behave violently in future in similar circumstances”. Further, at [43], the Minister noted that Mr Griffiths claimed that he had seen a drug and alcohol counsellor who had deemed that he had no problem with either substance. It was open to the Minister to give this matter little or no weight in circumstances where, as noted in [43], Mr Griffiths did not provide any documentation in support of this claim.

65    As to Mr Griffiths’ challenge to the Minister’s findings in [43] of his statement of reasons concerning the anger management course undertaken by him, the Minister acknowledged that it was incorrect for him to find that Mr Griffiths claimed that he had undertaken this course while in prison when in fact it was undertaken while on parole. But the error is immaterial. The critical point in this aspect of the Minister’s reasoning was that, notwithstanding that Mr Griffiths had undertaken this course, he was subsequently convicted of similar offending. Thus the Minister stated in [43] that he gave the training only limited weight in assessing the prospects of Mr Griffiths reoffending. Furthermore, it is evident from the final sentence of [43] that the Minister took into account Mr Griffiths’ undertaking to comply with any courses required of him by Probation and Parole. None of this discloses jurisdictional error for unreasonableness or illogicality.

66    Nor do Mr Griffiths’ challenges to the Minister’s findings and reasoning leading up to his conclusion that the risk of Mr Griffiths reoffending, albeit low, was unacceptable because of great harm which could be inflicted if he were to reoffend, disclose jurisdictional error. Mr Griffiths submits that it was wrong of the Minister to say that he had not been tested in the community since his last offence in circumstances where his visa was cancelled before his prison sentence was completed and he was taken immediately into immigration detention and thereby prevented from demonstrating that he was reformed. The first thing to note is that, contrary to Mr Griffiths’ submission, the Minister did not state that Mr Griffiths had “not been tested in the community since [his] last offence”. Rather, in [47], the Minister said that despite Mr Griffiths’ claims regarding his future intentions, he had not “been tested in an unsupervised capacity in the community since his last convictions” (emphasis added). The Minister plainly took into account the fact that Mr Griffiths had been released from prison under supervision while being on parole. Equally significantly, it is relevant to take into account the Minister’s other findings, including those set out in [46], where the Minister took into account Mr Griffiths’ failure to abide by the conditions of several Court orders which were designed to prevent him engaging in conduct which resulted in the series of offences against his former partner. I can discern no illogicality, irrationality or unreasonableness in the Minister’s reasoning.

67    As to Mr Griffiths’ claims of irrationality arising from the Minister’s findings relating to his conduct and experiences while in the Villawood Detention Centre, the Minister did take these matters into account but did not consider that they were outweighed by other relevant considerations. The Minister had before him copies of all the representations made by Mr Griffiths, including those concerning what he experienced in Villawood. The Minister alluded to those representations in the final sentence of [44] of his statement of reasons. The weight to be given to these claims was in a large part a matter for the Minister. No jurisdictional error has been demonstrated in the Minister’s reasoning and, in particular, with his ultimate finding that Mr Griffiths had shown a disregard for Australian laws and disrespect for authority given his past history of contravening seven AVOs.

(b) Failure to consider a relevant consideration (paragraphs 3, 6, 8, 15, 22, 25 and 27)

68    There is no substance in Mr Griffiths’ claim that the Minister did not mention that he had worked full-time while in custody as the leading carpenter for demountable classrooms. There was an express reference to that matter in [48] of the Minister’s reasons for decision. As to his complaint that the Minister did not mention Mr Griffiths’ intention to go back to work, even if there is no express mention of that particular matter in the Minister’s reasons for decision there is no basis for finding that the claim was disregarded in circumstances where the Minister stated several times that he had considered all of the information available to him, as well as considering Mr Griffiths’ representations and the documents submitted by him in support of those representations (see, in particular, [7] of the statement of reasons). That is not to say that such statements are always determinative (see, for example, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [47] per French, Sackville and Hely JJ). But no basis has been provided by Mr Griffiths for disbelieving the Minister’s statement that he had considered all Mr Griffiths’ representations. Each case necessarily turns upon its own particular facts and circumstances.

69    As to Mr Griffiths’ complaint that the Minister did not take into account his former partner’s conduct in relation to two charges against him, as the Minister pointed out, the information relating to the withdrawal of the charges was not before the Minister at the time the decision was made and, accordingly, cannot constitute a relevant consideration which the Minister was obliged to take into account.

70    As to his complaints regarding the adequacy of the consideration given by the Minister to the effect of Mr Griffiths’ removal from Australia on his ailing and aged mother, it is evident that while Mr Griffiths accepts that the matter was taken into account at one level, he is dissatisfied with the adequacy of that consideration. I do not accept that submission as involving any jurisdictional error on the part of the Minister. Detailed consideration was given by the Minister to this matter, as is reflected in relevant statements by him in [12], [19]-[23], [29], [56] and [60]. Mr Griffiths’ complaint effectively invites the Court to engage in an impermissible merits review of the Minister’s consideration of this matter.

71    For similar reasons, Mr Griffiths’ complaints concerning the adequacy of the Minister’s consideration of the fact that he had Addison’s Disease should be rejected. That matter is referred to in [12] and [25] of the reasons. It is evident that the Minister accepted that Mr Griffiths would suffer some hardship if he were returned to the United Kingdom as stated in [60] of the statement of reasons. But he considered that this was outweighed by other matters which supported non-revocation of the visa cancellation decision. No jurisdictional error has been established in respect of this reasoning.

72    As to Mr Griffiths’ complaints concerning the inadequacy of his legal representation in the criminal proceedings, this matter was taken into account by the Minister in [35] of the statement of reasons. It was also reasonably open to the Minister to take into account and rely upon the findings and observations of the Magistrate in convicting Mr Griffiths. No jurisdictional error has been established in respect of the weight which the Minister gave to the statement to the effect that Mr Griffiths had learnt his lesson and would no longer become involved in dysfunctional relationships. The weight to be given to such a statement, which was noted by the Minister in [45] of his statement of reasons, was largely a matter for the Minister.

(c) Complaints about procedure (paragraphs 5, 9, 11 and 12)

73    No jurisdictional error is disclosed from the fact that there was a delay between the offence and the Minister’s decision not to revoke the automatic visa cancellation decision. Similarly, Mr Griffiths’ complaints concerning the operation of what he describes as the “vetting system” discloses no jurisdictional error. It is a matter for the Minister to decide whether to exercise the power personally or to leave the matter to a delegate. This choice certainly has ramifications for the affected person’s right to have the decision reviewed in the AAT, but that is an aspect of the statutory regime itself.

74    As to the issue of whether s 501(3A) authorised or required Mr Griffiths’ detention, Mr Griffiths did not elaborate upon this claim. In my view it should be rejected. The statutory regime authorised his detention once his visa had been cancelled because he then had the status of an unlawful non-citizen.

75    There is a short answer to Mr Griffiths’ statement that he would like to apply for a State criminal justice stay certificate in relation to his claim for compensation. The simple answer is that such a certificate can only be issued for the purposes of the administration of criminal justice in relation to an offence against a law of the State. It does not apply to a civil proceeding (see s 148 of the Act).

(d) Absorbed person claims (paragraph 10)

76    The Minister’s submissions on this matter, as summarised above, must be accepted. Mr Griffiths does not have the status of an absorbed person under s 34 of the Act because he left Australia.

(e) Miscellaneous matters (paragraphs 18 and 26)

77    The Minister acknowledged that the primary judge had incorrectly attributed the statement regarding Mr Griffiths having learnt his lesson and would no longer be involved in dysfunctional relationships to the Minister, as opposed to Mr Griffiths’ former partner. This error does not involve jurisdictional error nor any irrationality for the reasons given by the Minister in his submissions as summarised above. The error of fact is minor and immaterial.

78    Nor is any jurisdictional error apparent in the primary judge’s refusal to admit into evidence the statutory declaration of the third person in circumstances where that letter was not before the Minister and Mr Griffiths has established no basis upon which it should be admitted in the judicial review proceeding below.

(f) Failure to give proper consideration (paragraph 28)

79    Mr Griffiths has established no basis to support his allegation that insufficient time was given by the Minister in considering his case. The circumstances here are very different from the evidence which was adduced in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 234 ALR 173. The claim is rejected.

Conclusion

80    For these reasons the appeal must be dismissed and Mr Griffiths ordered to pay the Minister’s costs.

Associate:

Dated:    11 May 2018