FEDERAL COURT OF AUSTRALIA

Anderson v Assistant Minister for Immigration and Border Protection

[2018] FCA 888

ORDERS

THE COURT ORDERS THAT:

1.    The application filed by the applicant on 20 October 2016 is dismissed.

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

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1    On 31 August 2016, the Assistant Minister for Immigration and Border Protection made a decision under s 501(2) of the Migration Act 1958 (Cth) (the Act) to cancel Mr Anderson’s absorbed person visa on the basis that he did not pass the character test due to his substantial criminal record (the 31 August 2016 decision). Shortly thereafter, Mr Anderson filed this application for a review under s 476A of the Act seeking, among other things, that the 31 August 2016 decision be quashed.

FACTUAL BACKGROUND

2    Mr Anderson is a New Zealand citizen. He first entered Australia with his family on 21 March 1979 when he was seven years old. At that time, because he held New Zealand citizenship, no entry permit was required and no entry permit is recorded as ever having been issued to him. On 1 September 1994, when the Migration Legislation Amendment Act 1994 (Cth) came into effect, he was statutorily granted an absorbed person visa.

3    Between 23 November 1992 and 22 July 2014, Mr Anderson committed numerous criminal offences. They included various drug offences, stealing, entering premises with intent, breaking and entering a dwelling with intent, wilful and unlawful damage to property, assaulting or obstructing a police officer and failing to take reasonable care and precautions with respect to a syringe or needle. Of these offences, one of the most serious was unlawfully trafficking in a dangerous drug (heroin) for which Mr Anderson was, on 12 May 2009, convicted and sentenced to eight years imprisonment. On the same day, he was also convicted of supplying a dangerous drug (heroin), for which he was sentenced to 12 months imprisonment. Between mid-2013 and mid-2014, Mr Anderson was twice released from custody on parole and twice returned to prison for reoffending whilst on parole.

4    On 5 January 2015, the Department of Immigration and Border Protection (the Department) notified Mr Anderson that, on 17 December 2014, a decision had been made to cancel his “Class BF transitional (permanent) visa” on the ground that Mr Anderson did not meet the character test due to his substantial criminal record (the 17 December 2014 decision). In the meantime, on 2 January 2015, Mr Anderson had been released from imprisonment in the State prison system and was immediately detained in immigration detention by an officer of the Department acting under s 189 of the Act. However, in the ensuing 10 months approximately, the Department came to the view that the 17 December 2014 decision was “erroneous and the visa was reinstated”. As a result, Mr Anderson was released from immigration detention on 29 October 2015.

5    Less than a week later, on 4 November 2015, the Assistant Minister provided Mr Anderson’s authorised recipient with a notice of intention to consider cancelling his absorbed person visa. This notice included an invitation to Mr Anderson to comment, or provide information, on whether he passed the character test and whether his visa should be cancelled. He was requested to do so for the former within 28 days, and had the option of seeking an extension for the latter, if that information could not be provided within 28 days.

6    Notwithstanding his failure to do either, no further communications occurred until 20 May 2016, when a letter was sent to his authorised recipient informing him that a new police certificate dated 18 April 2016 had been obtained which may be taken into account when considering whether to cancel his visa. Mr Anderson was once again invited to comment, or provide information, on this matter. In response, on 27 May 2016, he telephoned the Department to request an extension of time to provide his comment or information. By an email dated 27 May 2016, Mr Anderson was granted an extension until 3 June 2016. In the same email, the Department requested that he provide specific information about his daughter, his employment, his rehabilitation, his family ties in Australia and his parole.

7    Having received no further communication, on 17 June 2016, the Department wrote again to Mr Anderson inviting him, once again, to provide the further comment or information requested. On 4 July 2016, the Department received letters from Mr Anderson’s mother, daughter and employer. These appear to be the only additional materials provided by, or on behalf of, Mr Anderson.

8    As is already recorded above, on 31 August 2016, the Assistant Minister decided to cancel Mr Anderson’s absorbed person visa. On 16 September 2016, Mr Anderson was informed of this decision and again detained under s 189 of the Act. He presently remains in immigration detention.

THE ORIGINATING APPLICATION AND THE relief sought

9    Mr Anderson’s case underwent somewhat of a metamorphosis after it was first commenced. In his originating application, he claimed that, in making the 31 August 2016 decision, the Assistant Minister committed jurisdictional error by:

1.    Fail[ing] to afford natural justice within the meaning of the Act

2.    T[aking] into account irrelevant considerations

3.    Fail[ing] to take into account relevant information, including but not limited to [the 17 December 2014 decision] and [Mr Anderson’s] unlawful detention by the Department

4.    [M]aking a decision that was illogical, irrational and unreasonable

(Errors in original)

10    In his counsel’s subsequent written submissions, Mr Anderson appeared to reframe the four grounds of jurisdictional error mentioned above into the following three grounds:

a.    Misapplying erroneous principles into the application of the Migration Act

b.    Impropriety with respect to the failure to properly account for, and afford procedural fairness with respect to the previous [17 December 2014] visa cancellation

c.    Unreasonableness and the failure to take account of relevant considerations

(Errors in original)

11    Then, during the first stage of the hearing of his application when details of the Department’s confusion concerning the 17 December 2014 decision came to light, Mr Anderson obtained leave to amend his originating application to contend that the Assistant Minister had no power to make the 31 August 2016 decision because of the pre-existing 17 December 2014 decision. This contention was expressed in the following terms:

a.    Act[ing] without power in making a decision that was not authorised, was ultra vires, or was unable to be made as any and all visas held by [Mr Anderson] had already been cancelled [by the 17 December 2014 decision] and the decision maker lacked power to cancel a visa which had already been cancelled; or

b.    Lack[ing] the power to make a decision in circumstances where the decision maker’s power was already engaged through the previous [17 December 2014 decision] and where such decision, and revocation process had not been completed.

(Errors in original)

12    By way of relief, Mr Anderson has sought: that the 31 August 2016 decision be quashed; that he be released from immigration detention; and that the Assistant Minister pay his costs of and incidental to this proceeding.

SUMMARY OF the two decisions

The 17 December 2014 decision

13    The 17 December 2014 decision was made under the mandatory cancellation provisions in s 501(3A) of the Act. It was based on Mr Anderson’s failure to pass the character test prescribed by the Act due to his having a substantial criminal record as defined in ss 501(6)(a) and 501(7)(c) and the fact he was, at the time, serving a sentence of imprisonment. It was Mr Anderson’s 12 May 2009 convictions for trafficking in a dangerous drug (heroin) and supplying a dangerous drug (heroin) that constituted the substantial criminal record. As is already noted above and discussed further later in these reasons, this decision purported to cancel a “Class BF transitional (permanent) visa” that Mr Anderson was presumed to hold.

14    By a letter dated 5 January 2015, Mr Anderson was informed that he could seek a revocation of this decision. Mr Anderson exercised this right and his revocation request form dated 13 January 2015 was received by the Department on 22 January 2015.

15    As is already mentioned above, during 2015 the Department came to the view that the 17 December 2014 decision had been made in error. It came to that view essentially because it realised Mr Anderson did not, in fact, hold the visa he was assumed to hold, namely the Class BF transitional (permanent) visa described above. There is no record of the 17 December 2014 decision ever having been formally revoked, reversed, or otherwise withdrawn.

The 31 August 2016 decision

16    The 31 August 2016 decision was made by the Assistant Minister under s 501(2) of the Act. By that decision, Mr Anderson’s absorbed person visa was cancelled and, by operation of ss 501F(2) – (3) of the Act, any other visas he held, or may have held, or had applied for (other than a protection visa or visa specified in the regulations), were also cancelled or refused. As with the 17 December 2014 decision, the 31 August 2016 decision was based on Mr Anderson’s failure to satisfy the character test prescribed by the Act due to his substantial criminal record. Again, it was Mr Anderson’s 12 May 2009 conviction for unlawfully trafficking in a dangerous drug (heroin) that constituted his substantial criminal record.

17    In the Statement of Reasons which were provided for the 31 August 2016 decision, the Assistant Minister highlighted the following matters, among others, as being relevant to the exercise of his discretion to cancel Mr Anderson’s visa:

DISCRETION

9.    … I was mindful that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia.

Protecting the Australian Community

10.    … the Government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens … remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are, and have been law abiding.

Criminal Conduct

11.    … I find that crimes related to trafficking and supplying illicit substances are viewed very seriously …

…

14.    On 12 May 2009, Mr ANDERSON was convicted in the Supreme Court of Queensland of unlawfully trafficking in a dangerous drug (heroin) and unlawfully supplying dangerous drug (heroin) (Schedule 1) and sentenced to eight years imprisonment and 12 months imprisonment, respectively.

15.    … The sentencing judge described the [heroin trafficking and supply venture] as a substantial business with ‘something of a commercial element’.

…

17.    … Between 1992 and 2008, he was convicted of drug, property and dishonesty offences with varying sentences …

18.    I find that Mr ANDERSON’s drug trafficking and supply offending overall is very serious …

19.    I also find that the cumulative effect of Mr ANDERSON’s offending including breaching of parole by re-offending, demonstrate a disregard for the law and court imposed penalties.

Risk to the Australian Community

20.    I have considered whether Mr ANDERSON poses a risk to the Australian community through re-offending by having regard to any mitigating or causal factors in his offending, and assess the steps Mr ANDERSON has undertaken to reform and address his behavior. I have also taken into account Mr ANDERSON’s overall conduct in the custodial and non-custodial environment, and his insight into the offending.

21.    … I accept that his addiction was a causal factor in his offending. However, I also note that Mr ANDERSON’s venture evolved into a business …

…

26.    Despite his [drug rehabilitation] progress, Mr ANDERSON re-offended after being released to parole in May 2013, and I note the offending behaviour was said to be associated with illicit drugs use.

…

29.    In assessing the likelihood of Mr ANDERSON re-offending, I have considered that since his release from detention he has complied with his parole conditions, attained stability in his life and has familial support. Notwithstanding this progress, I find that Mr ANDERSON’s rehabilitation has been tested in the community for a relatively short time, being since October 2015, and the likelihood that he may re-offend remains ongoing.

30.    If Mr ANDERSON did engage in further criminal conduct of a similar nature, the harm to the community would be great and could result in conduct that could cause psychological and/or physical harm to a member of the Australian community. There may also be a cost to the community if there is a required involvement of law enforcement, the justice system or the public health system.

Best interests of minor children

...

36.    I formed the view that the best interests of Mr ANDERSON’s minor daughter are served by the non-cancellation of his visa so that Jessy may continue to reside with him on a week-about basis and continue to live with and be raised by her father into the future. In addition, I accept that her best interests are served by a non-cancellation decision so that Mr ANDERSON can continue to contribute to her financial support.

37.    I also note that Mr ANDERSON has 14 nieces/nephews in Australia and that some or all of them may be minors. I find that it would be in the best interest of any minor nieces or nephews that Mr ANDERSON’s visa is not cancelled to give them the opportunity to spend time with him if they wished to. However, I give this less weight given he does not have parental responsibility for them.

Expectations of the Australian community

38.    In making my decision I have been mindful of the principle that the Australian community would expect that non-citizens who commit serious crimes in Australia should have their visa cancelled.

39.    The Australian community expects that non-citizens obey Australian laws while in Australia. Mr ANDERSON has breached this trust and has been convicted of drug offences in Australia, and I find it is appropriate to cancel the visa held by such a person.

Other Considerations

Ties to Australia

…

41.    Mr ANDERSON has resided in Australia for over 37 years, having arrived as a seven year old child. Mr ANDERSON has lived in Australia for most of his life and I hold the view that the Australian community may therefore afford a higher tolerance of criminal conduct.

42.    Mr ANDERSON has close family ties in Australia consisting of his minor daughter (Jessy Anderson), spouse (Tracey Lee Anderson), mother (Eileen Anderson), four sisters, two brothers and 14 nieces and nephews.

…

45.    Mr ANDERSON was employed as an owner/operator of Queensland Pet Care and Richies Produce between 2000 and 2008 and has been employed as a driver/installer for the Marquee Division of Excellent Events since 10 March 2016.

…

47.    I have considered the effect of visa cancellation upon Mr ANDERSON’s immediate family in Australia and accept that his daughter and spouse would experience emotional and financial hardship …

48.    I also find that Mr ANDERSON’s mother, siblings and extended family would experience emotional hardship.

49.    I also consider that Mr ANDERSON has been making some positive contribution to the community for some eight years [through his lawful employment] although I have had regard to the evidence that this period coincided with Mr ANDERSON’s period of offending.

Extent of impediments if removed

…

51.    Mr ANDERSON is 44 years of age and has no health issues.

52.    I note that Mr ANDERSON’s psychologist was concerned that if Mr ANDERSON was removed from Australia, the isolation and separation from his family may trigger mental and emotional instability and adversely affect his rehabilitation and his capacity to remain abstinent.

53.    I accept that Mr ANDERSON has no familial or social ties in New Zealand and I find he is likely to suffer hardship associated with the absence of his immediate family. I find that Mr ANDERSON would find it difficult, at least initially, and particularly without support from family and friends, to establish himself in New Zealand.

54.    Mr ANDERSON possesses employment skills that are transferrable to New Zealand and I note that the social welfare system and employment opportunities in New Zealand are comparable to that in Australia.

55.    The language and culture in New Zealand is similar to that in Australia and as such, there are no apparent cultural or language factors that would impede his re-settlement in New Zealand.

CONCLUSION

56.    I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Act and (2) all other evidence available to me, including evidence provided by, or on behalf of Mr ANDERSON.

57.    Mr ANDERSON has committed very serious crimes of unlawfully trafficking in a dangerous drug (heroin) and unlawfully supplying dangerous drug (heroin) (Schedule 1), and he should expect to forfeit the privilege of staying in Australia.

58.    I find that the Australian community could be exposed to great harm should Mr ANDERSON re-offend in a similar fashion. I could not rule out the possibility of further offending by Mr ANDERSON. The Australian community should not tolerate any further risk of harm.

59.    I found the above consideration outweighed the countervailing considerations in Mr ANDERSON’s case, including the best interests of his child and impact on family members. I have also considered the length of time Mr ANDERSON has resided in Australia and made a positive contribution to the Australian community.

60.    I am cognisant that where great harm could be inflicted on the Australian community even strong countervailing considerations are insufficient for me not to cancel the visa. This is the case even applying a higher tolerance of risk of re-offending by Mr ANDERSON than I otherwise would, because he has lived in Australia for most of his life.

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

…

CONTENTIONS

18    The grounds of Mr Anderson’s application were not particularised in his originating application, however, they were developed in his counsel’s written submissions. Summarised below are Mr Anderson’s contentions on each of the issues as set out in his original and amended originating applications (see [9]–[11] above) and his written and oral submissions, appropriately grouped by subject matter. It can be seen from this summary that the 17 December 2014 decision has affected almost every aspect of this proceeding, the notable exception being the irrelevant considerations ground below (see at [24]–[28]).

The failing to afford natural justice and/or procedural fairness ground (item 1 in [9] and (b) in [10])

19    In making the 31 August 2016 decision, Mr Anderson claimed that the Assistant Minister had failed to afford him natural justice or procedural fairness by: not informing him why he was released from detention after the 17 December 2014 decision was reversed; not advising him that the Department had erred in making that decision; and not giving him the opportunity to make submissions on these matters, including the opportunity to make submissions on “whether the decision could be remade or, if it was to be remade, on what basis it should be made and by whom”.

20    In response, the Assistant Minister contended that, before the 31 August 2016 decision was made, Mr Anderson was invited to provide information on the potential cancellation of his absorbed person visa on multiple occasions (see [5]–[7] above), and that it was not a denial of natural justice or procedural fairness if he “could have better utilised those opportunities”. In response to Mr Anderson’s contentions concerning the 17 December 2014 decision, the Assistant Minister emphasised that it was the 31 August 2016 decision that was under review in this proceeding, and that the 17 December 2014 decision was a separate and distinct decision. In any event, the Assistant Minister contended that Mr Anderson was effectively given the opportunity to provide submissions on the earlier visa cancellation when he was invited to seek a revocation of that decision, which invitation he accepted by submitting a request form (see [14] above). The Assistant Minister also pointed out that, in making the 31 August 2016 decision, he had material before him which related to the 17 December 2014 decision (including Mr Anderson’s revocation request form). Further, he contended that this material accompanied the notice of intention to cancel Mr Anderson’s absorbed person visa which was sent to his authorised recipient on 4 November 2015 and upon which he was invited to make submissions. Having provided that notice, the Assistant Minister contended that he “was not under any obligation to inquire whether [Mr Anderson] could put forward any additional statements or to encourage [him] to do so”.

The failing to take into account a relevant consideration ground (item 3 in [9] and (c) in [10] in part)

21    Mr Anderson claimed that the Assistant Minister had failed to take into account two relevant considerations, namely the 17 December 2014 decision, and the 10 months he had spent in immigration detention as a result thereof. In response, the Assistant Minister contended that this was not a mandatory relevant consideration capable of giving rise to jurisdictional error. In this respect, the Assistant Minister contended that his discretion to cancel the absorbed person visa was “unfettered in its terms”. In any event, the Assistant Minister contended that the letter advising Mr Anderson of the 17 December 2014 decision (and other material associated with that decision) was before the Assistant Minister when he made the 31 August 2016 decision and it could therefore be inferred that it had been taken into account.

22    In oral submissions, Mr Anderson sought to express this ground somewhat differently. He contended that he could not have been a risk to the community when he was serving his sentence in the State prison system and also when he was in immigration detention as a result of the 17 December 2014 decision. This, he contended, was a relevant consideration that the Assistant Minister had failed to take into consideration in making the 31 August 2016 decision. He also sought to characterise this failure as unreasonableness.

23    The Assistant Minister accepted, in oral submissions, that there was no express reference in the Statement of Reasons to Mr Anderson “having spent time in immigration detention”. However, he contended that paragraphs 19, 20, 29 and 30 of those reasons showed that he was aware of the time Mr Anderson had spent in the State prison system for his offences and he particularly took account of the risk he posed to the community by reoffending. In any event, the Assistant Minister contended this was not a mandatory relevant consideration which would give rise to jurisdictional error if it were not considered. The Assistant Minister did not make any submission on Mr Anderson’s claim that this failure should be characterised as unreasonableness.

The taking into account irrelevant considerations / misapplying erroneous principles ground (item 2 in [9] and (a) in [10])

24    Under this ground, Mr Anderson claimed that the Assistant Minister had taken account of the following irrelevant considerations. He claimed he did that by adopting and applying the following erroneous principles which he had extracted from the Act:

c.    That there was an overriding sovereign discretion to exclude non-citizens of character concern

d.    That remaining in Australia is a privilege

e.    The prevalence, threat and risk to the community of the offending to the Australian community of the offending and the financial costs

f.    The expectation of the Australian community that people convicted of serious offences have their visas cancelled

g.    That language and culture are the only relevant factors in the ties to New Zealand that matter

h.    That the sentence was varied on appeal and the appellate court’s reasons were unavailable

(Footnotes omitted)

25    Mr Anderson did not address each of the above considerations in his submissions and in oral submissions he did not press consideration “c”. With respect to considerations “d” and “f”, he sought to rely on the decision in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 (Stretton) at [70], where Griffiths J warned that “phrases such as ‘expectations of the Australian community’ and the ‘privilege’ of being a visa-holder” should not be used to diminish “the value of the statement of reasons” given that “[t]he former concept has the potential to mask a subjective value judgment and to distort the objectivity of the decision-making process” and given that “[t]he latter expression is simply misleading as a legal concept”. To similar effect, he sought to compare the words used in the Statement of Reasons with those that were criticised in Tesic v Minister for Immigration and Border Protection [2016] FCA 1465 (Tesic) at [56]–[57] per Collier J. He submitted that “the Assistant Minister has acted on the basis that the words have the force of law or executive power and is accordingly acting outside of the Minister’s power and has erred at law.”

26    He appeared to characterise consideration “g” as a failure to take account of relevant considerations rather than the inverse which is what is contended for in this ground. For example, he submitted that the “Assistant Minister gave no consideration to any of the other factors he was required to consider under the Ministerial Direction or even that any reasonable decision maker would consider appropriate for a person of the Applicant’s age in sending a person to a country where they have never lived and never called home.” Finally, he also contended that Ministerial Direction No. 65 (the Direction) was binding.

27    In response, the Assistant Minister denied that he had adopted and applied any erroneous principles or taken into account any irrelevant considerations. While he disputed Mr Anderson’s contention that the Direction was binding on him (citing Maxwell v Minister for Immigration and Border Protection (2016) 249 FCR 275; [2016] FCA 47 (Maxwell) and Bochenski v Minister for Immigration and Border Protection (2016) 153 ALD 309; [2016] FCA 989 (Bochenski)), he contended that he had, in any event, closely followed it. He relied on the following comparisons between the Statement of Reasons and the Direction to demonstrate this point:

Direction 65 at 6.2 provides general guidance, in reference to the ‘principles’ provided at 6.3, stating:

•    The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (see [Statement of Reasons] at [10];

Direction 65 at 6.3 outlines those ‘principles’ and relevantly states:

•    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia (see [Statement of Reasons] at [9]);

•    ... remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding (see [Statement of Reasons] at [10));

•    The Australian community expects that the Australian Government can ... … cancel their visas, if they commit serious crimes in Australia ... (see [Statement of Reasons] at [38]);

•    A non-citizen who has committed a serious crime, …. Should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia (see [Statement of Reasons] at [57]).

Direction 65 also considers other matters, as follows:

•    At 9.3, The Australian community expects non-citizens to obey Australian laws while in Australia (see [Statement of Reasons] at [39]);

•    At 9.1.2(1) In considering whether the non-citizen represents an unacceptable risk of harm ... decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases (see [Statement of Reasons] at [58]).

28    As for Mr Anderson’s submissions about Tesic, the Assistant Minister submitted that, in this matter, the principles emerging from the Direction were applied “as general matters of policy” and not as “a principle of law”, relying on Tesic at [57]. After making these submissions, Tesic was overturned on appeal in Minister for Immigration and Border Protection v Tesic (2017) 251 FCR 23; [2017] FCAFC 93 (Tesic FC) and the Assistant Minister further submitted that the language used in Tesic FC was “directly analogous” to the Statement of Reasons and that “unless there [was] some distinction in the facts, this Court [was] bound to follow” it. In reply on this aspect, Mr Anderson submitted that Tesic FC did not “significantly alter the law” and that it remained “a matter for the Court to determine the meaning and effect of the language used by a decision maker”. In oral submissions he added that it was a matter for this Court to consider whether the Tesic FC principles had “been applied correctly and in terms of the overall decision”.

The illogical, irrational and unreasonable decision ground (item 4 in [9] and (c) in [10] in part)

29    Mr Anderson also claimed that the 31 August 2016 decision was an illogical, irrational and unreasonable decision on the following grounds:

j.    In finding that the criminal conduct was such that his personal conduct was such a significant risk to the Australian community

k.    In finding that he had not attained rehabilitation and he would be an actual future risk

l.    In finding that the rights and interests of the child were outweighed

m.    That he was not of good character

n.    The decision maker purported to remake the decision that it had already made [as a result of the 17 December 2014 decision] and despite having previously released [Mr Anderson] from immigration detention recommitted him to further detention and made him liable to further deportationn

o.    In reaching the decision in the entirety of the above considerations

(Errors in original)

In his written submissions, Mr Anderson appeared to contend that the six alleged irrelevant considerations outlined above (at [24]) also demonstrated unreasonableness. On this ground, Mr Anderson contended that the “central part of [his] case” was whether the Assistant Minister took into account the period he had spent in prison and the time he had spent in immigration detention as a result of the erroneous 17 December 2014 decision in assessing whether he was a risk to the community.

30    In response, the Assistant Minister contended that all of these six matters (at [29] above) involved “an area of ‘decisional freedom’ or ‘genuinely free discretion’ within which reasonable minds might differ” (footnotes omitted) and that they were “not sufficient to establish jurisdictional error”. Further, the Assistant Minister submitted that, whilst the Direction was not binding, the 31 August 2016 decision was made within its framework and that the Statement of Reasons revealed an “evident and intelligible justification for making the decision to cancel [Mr Anderson’s] visa.” Finally, he submitted that jurisdictional error could not be shown by an applicant contending “it was open” for a different conclusion to have been reached. As well, on the question of unreasonableness, the Assistant Minister submitted that the Full Court decision in AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451; [2016] FCAFC 105 (AZAFQ), particularly at [46]–[48], should be followed.

The acting without power ground (items (a) and (b) in [11])

31    On this ground, first, Mr Anderson contended that the Assistant Minister acted without power in making the 31 August 2016 decision to cancel his absorbed person visa because that visa had already been cancelled as a result of the 17 December 2014 decision. Secondly, he contended that the Assistant Minister lacked the power to make the 31 August 2016 decision because this power had already been engaged through the 17 December 2014 decision and that decision had not been properly revoked. On this aspect, Mr Anderson initially submitted that, by operation of s 501F(3) of the Act, the 17 December 2014 decision to cancel the Class BF transitional (permanent) visa had the effect of cancelling any other visas held by him, including his absorbed person visa. Accordingly, so he contended, before the 31 August 2016 decision could act to cancel his absorbed person visa, the 17 December 2014 decision “had to be lawfully set aside or revoked.” He also contended that the cancellation of his absorbed person visa could not be “revisit[ed]”. Ultimately, however, Mr Anderson appeared to accept that the 17 December 2014 decision “had no effect of automatically cancelling the absorbed person visa.” Still, he contended, the 17 December 2014 decision remained an issue on the basis that “it was never determined in accordance with law.”

32    In response, the Assistant Minister contended that the 17 December 2014 decision “was no decision at all and as such could not have affected the Assistant Minister’s [31 August 2016 decision]”. This contention was advanced on the premise that the 17 December 2014 decision only referred to cancelling the Class BF transitional (permanent) visa, when in fact Mr Anderson did not hold that kind of visa. Consequently, the Assistant Minister contended that s 501F(3) of the Act was not engaged because the 17 December 2014 decision “was a purported decision to cancel a visa that [Mr Anderson] did not hold”, and as such, the decision was a nullity. Finally, the Assistant Minister submitted that the 17 December 2014 decision had been “withdrawn” and that Mr Anderson had been advised that he was “the holder of a visa” upon his release from immigration detention, and that ultimately there could “be no doubt that the purported [17 December 2014 decision] was of no effect.”

THE STATUS AND EFFECT OF THE 17 DECEMBER 2014 DECISION

33    Since Mr Anderson relied on the existence of the 17 December 2014 decision to claim that the Assistant Minister had no power to make the 31 August 2016 decision or, if he did have that power, that earlier decision gave rise to the various jurisdictional errors in the 31 August 2016 decision outlined above, it is convenient to begin by considering the status and effect of the 17 December 2014 decision. With respect to that decision, the following issues arise:

(1)    What was Mr Anderson’s status under the Act at the time that the two cancellation decisions were made?

(2)    What was the effect of the 17 December 2014 decision, specifically was it a nullity?

(3)    What effect, if any, did the 17 December 2014 decision have on the 31 August 2016 decision?

(a)    What was Mr Anderson’s status under the Act at the time of the two decisions?

34    The short answer to this question has already been set out above (see at [2]). In elaborating on the details of that answer, a convenient starting point is the provisions of the Act that affected Mr Anderson’s status when he first came to Australia as a child in 1979. At that time (21 March 1979), ss 6 and 8 of the Act relevantly provided:

6.    (1)    An immigrant who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited immigrant.

8.    (1)    Nothing in this Division applies in relation to the entry into Australia of an immigrant being–

    (a)    a member of the armed forces of the Crown entering Australia in course of his duty;

(b)    a diplomatic or consular representative or official trade commissioner of a country other than Australia, or a member of the staff of such a representative or commissioner who has been sent to Australia by the government of that country, or the wife or dependent relative of such a representative, commissioner or member;

(c)    a person included in the complement of a vessel of the regular armed forces of a government recognized by the Commonwealth entering Australia with leave from that vessel during the vessel’s stay in a port, not being a person in respect of whom a declaration is in force under the next succeeding sub-section;

(d)    a member of the crew of any other vessel entering Australia with leave from that vessel during the vessel’s stay in a port, where the master of the vessel has duly complied with the provisions of Division 3 of this Part that are applicable upon arrival of the vessel at that port, not being a person in respect of whom a declaration is in force under the next succeeding sub-section; or

(e)    a person who–

(i)    is for the time being exempted, by instrument under the hand of the Minister, from the requirements of this Division relating to entry permits; or

(ii)    is included in a class of persons who are for the time being so exempted,

not being a person in respect of whom a declaration is in force under the next succeeding sub-section.

35    For the purposes of s 8(1)(e) above, on 13 March 1979 – eight days before Mr Anderson arrived in Australia – an instrument of exemption was published in the Commonwealth of Australia Gazette (No G 10, 13 March 1979, pp 56–57). That instrument relevantly provided that the following persons were exempt from requiring entry permits:

(j)    Citizens of New Zealand not included in the classes referred to in paragraph 8 (1) (a) (b) (c) or (d) of the Migration Act 1958;

(k)    Citizens of countries specified in the Schedule not otherwise referred to in this instrument …

…

The Schedule specified New Zealand. Consequently, because he was a citizen of New Zealand and because he was also not included in any of the clauses referred to in ss 8(1)(a) – (d) of the Act above, Mr Anderson fell within the exemptions prescribed in both of the paragraphs of this instrument.

36    Then, on 1 September 1994, Mr Anderson’s status was changed by the provisions of the Migration Legislation Amendment Act 1994 (Cth), which came into effect on that date. That legislation introduced s 34 into the Act. That section relevantly provided:

(1)    There is a class of permanent visas to remain in, but not re‑enter, Australia, to be known as absorbed person visas.

(2)    A non‑citizen in the migration zone who:

(a)    on 2 April 1984 was in Australia; and

(b)    before that date, had ceased to be an immigrant; and

(c)    on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 September 1994; and

(d)    immediately before 1 September 1994, was not a person to whom section 20 of this Act as in force then applied;

is taken to have been granted an absorbed person visa on 1 September 1994.

37    The purpose of s 34 was described by the Full Court in Sales v Minister for Immigration and Citizenship (2008) 171 FCR 56; [2008] FCAFC 132 (Sales) by reference to an earlier High Court decision in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 (Nystrom) as follows (at [53]):

It was explained in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 (Nystrom) that s 34 was enacted in 1994 to overcome the unintended effect of amendments made to the old 1958 Act in 1984 which had caused certain non-citizens to be prohibited non-citizens. Part of the steps taken in 1994 was to undo these unintended consequences from the date of their effect — ie 2 April 1984 (see Nystrom 228 CLR 566 at [13], [19], [103]-[109]).

38    Hence, from 1 September 1994, Mr Anderson remained in Australia on an absorbed person visa. Accordingly, that was his status under the Act at the time of the two cancellation decisions in December 2014 and August 2016. Conversely, he did not hold a transitional (permanent) class of visa which he was assumed to hold at the time of the 17 December 2014 decision. That is so because, as provided for elsewhere in the Act (see Sales at [55]–[59]), that class of visa depended upon two conditions: that the non-citizen was in Australia before 1 September 1994; and that that person held a permanent entry permit (see Sales at [63]–[64]). While Mr Anderson met the former condition, he did not meet the latter. That is, like Mr Sales, he did not ever hold any form of entry permit (see Sales at [71]–[73]). This contrasts with Mr Nystrom’s circumstances who, unlike Mr Anderson, did hold such an entry permit and who therefore held both an absorbed person visa and a transitional (permanent) visa as a consequence of the reforms made to the Act in 1994 (see Nystrom at [36]).

(b)    What was the effect of the 17 December 2014 decision?

39    The next issue is: what was the effect of the 17 December 2014 decision? In considering this issue, it is convenient to begin with the provision of the Act under which that decision was made. As indicated above (at [13]), that was s 501(3A), which provides that:

The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

40    While it was not expressly mentioned in the 17 December 2014 decision, s 501F of the Act may also have been significant to that decision. It relevantly provides:

(1)    This section applies if the Minister makes a decision under section 501, 501A, 501B or 501BA to refuse to grant a visa to a person or to cancel a visa that has been granted to a person.

…

(3)    If:

(a)    the person holds another visa; and

(b)    that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;

the Minister is taken to have decided to cancel that other visa.

(4)    If the decision referred to in subsection (1) is set aside or revoked, the decision that the Minister is taken to have made under subsection (2) or (3) is also set aside or revoked, as the case may be.

…

41    By reason of Mr Anderson’s circumstances in December 2014, he fell within the terms of ss 501(3A)(a) and (b) above: he was, at that time, imprisoned on a full-time basis; and, according to the terms of the letter dated 5 January 2015, the Minister was satisfied that he did not pass the character test. That being so, the Minister was required by that section to cancel “a visa that has been granted to” him. There was, therefore, no difficulty with the statutory provisions upon which the 17 December 2014 decision was based. The defect in that decision lay elsewhere, namely in the particular visa to which it was directed. So much is apparent from the letter dated 5 January 2015 which notified Mr Anderson (via his authorised recipient) of that decision. That letter referred to Mr Anderson’s “Class BF transitional (permanent) visa” and described it as the visa “which you held from 1 September 1994 by operation of law, under the Migration Reform (Transitional Provisions) Regulations.” No reference was made to any other visa, including the absorbed person visa that Mr Anderson actually held.

42    These factual circumstances are similar to those in Minister for Immigration & Multicultural & Indigenous Affairs v Schwart [2003] FCAFC 229 (Schwart). In that matter, the Minister purported to cancel a “Subclass 155 – 5 Year Resident Return Visa” that Mr Schwart was wrongly assumed to hold and not the residence visa category K1412 that he actually held. After concluding that, on a fair reading of the memorandum signed by the Minister recording his decision, the Minister had purported to cancel the former visa, the Court said (at [31]):

It may well be that the case officer and acting director who prepared and cleared the Memorandum were intending to put before the Minister for his consideration the possible cancellation of the residence visa category K1412 held by the respondent. However, the Memorandum does not say that. The Decision Page does not purport to cancel a residence visa category K1412. It does not purport to cancel anything other than a ‘Subclass 155 – 5 Year Resident Return Visa’. The respondent was never the holder of such a visa. The Memorandum purports to cancel a visa that did not exist. The Minister’s purported decision was a nullity.

43    The Court went on to add (at [32]):

The result may appear to be a technical one. However, the material before the Court is an unfortunate example of sloppiness on the part of Commonwealth administrators. Where the entitlement of an individual to remain in Australia is in issue in the making of a decision, the Australian community is entitled to expect that the documentation in relation to the making of such a significant decision is prepared with care. The material in question has not been prepared with care.

44    In this matter, it is clear from the letter dated 5 January 2015 that the 17 December 2014 decision was directed to a Class BF transitional (permanent) visa, and only that visa. As has been explained above, Mr Anderson was never the holder of such a visa. It necessarily follows that, in making the 17 December 2014 decision, the Minister or his delegate purported to cancel a visa that did not exist. That being so, applying Schwart, I consider I am bound to hold that the 17 December 2014 decision was a nullity.

45    A number of consequences follow from this conclusion. First, while it is not directly relevant in this application, there is authority that such a decision constitutes jurisdictional error (see Johnson v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 494; [2004] FCA 137 at [30] per French J). Secondly, as the Assistant Minister correctly contended in this matter, that decision cannot be treated as ever having been made “under” the Act (see Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 at [76]). Finally, and relatedly, as such, the provisions of s 501F(3) of the Act were not engaged with respect to that decision (see Sales at [47]).

46    Before leaving this issue, it is appropriate to add these further observations. It is apparent from the Department’s records relating to the 17 December 2014 decision that were eventually placed before the Court that that decision was not subjected to the kind of care and attention that should have been applied when making such a significant decision (see Schwart at [32] set out at [43] above). Furthermore, given that the Minster or his delegate had exercised a significant statutory power in making that decision and given that, as a result, an officer of the Department had acted under s 189 of the Act to detain Mr Anderson in immigration detention for a period of approximately 10 months, once it was realised that the decision had been made in error, it was, in my view, incumbent on the Minister or his delegate to alert Mr Anderson to that error and provide a timely explanation for it having occurred. Apart from anything else, a great deal of confusion would have been avoided in this proceeding and a significant amount of time would have been saved if such an explanation had been provided to Mr Anderson soon after that error was detected. I should add that my conclusions below that the 17 December 2014 decision did not have any relevant effect on the subsequent decision of 31 August 2016 does not detract from the force of these observations.

47    To sum up on this issue, I have relevantly concluded that: the 17 December 2014 decision was a nullity; and it was not a decision that can be treated as having been made under the provisions of the Act. For these reasons, I reject Mr Anderson’s contentions insofar as they are to the contrary (particularly those at [31] above) and accept those of the Assistant Minister (at [32] above).

(c)     What effect, if any, did the 17 December 2014 decision have on the 31 August 2016 decision?

48    As is noted earlier in these reasons, the 31 August 2016 decision was made under s 501 of the Act. For present purposes, that section relevantly provides:

…

(2)    The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

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

…

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

…

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

…

49    Section 501CA is also important to this application. It relevantly provides:

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

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

(b)    the Minister is satisfied:

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

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

(5)    If the Minister revokes the original decision, the original decision is taken not to have been made.

…

50    In contending that the Assistant Minister had committed jurisdictional error in making the 31 August 2016 decision, Mr Anderson relied on the 17 December 2014 decision in multiple respects, which can be grouped into the following four categories:

(i)    acting without power (items (a) and (b) in [11] above);

(ii)    failing to take into account a relevant consideration (item 3 in [9] and item (c) in [10] in part above);

(iii)    failing to afford procedural fairness (item (b) in [10] and item 1 in [9] above); and

(iv)    unreasonableness (item 4 in [9] and item (c) in [10] in part above).

For the reasons that follow, I do not consider that any of these matters gave rise to any jurisdictional error in the 31 August 2016 decision.

(i)    Acting without power

51    This jurisdictional error is said to arise from Mr Anderson’s claim that, by the time of the 31 August 2016 decision, the Assistant Minister had already cancelled his absorbed person visa and he therefore had no power to cancel it again. Alternatively, he claimed that the Assistant Minister could not validly make the 31 August 2016 decision in circumstances where the 17 December 2014 decision had not been properly revoked. For the reasons I have already given above (at [47]), I reject both of these contentions. The former has no merit because, as I have concluded above, the 17 December 2014 decision was a nullity and, as such, it did not engage s 501F of the Act and it did not therefore result in a cancellation of the absorbed person visa that Mr Anderson held. The latter has no merit because, as a nullity, and as a decision that cannot be recognised as having been made under the Act, there was no need for it to be revoked.

(ii)    Failing to take into account a relevant consideration

52    Mr Anderson contended that, in making the 31 August 2016 decision, the Assistant Minister failed to take into account, as a relevant consideration, the time he had spent in custody in the State prison system and the 10 months he had spent in immigration detention as a result of the 17 December 2014 decision. In Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505; [2004] FCAFC 256 (at [71]–[74] per Kiefel and Bennett JJ), the Full Court explained the limited meaning a relevant consideration has in an administrative law sense as follows (at [71]):

… It is one which the decision-maker is bound to take into account in making the decision in question. The factors which the decision-maker is bound to take into account are determined by the construction of the statute conferring the discretion. If they are not stated, they are to be determined by implication from the subject-matter, scope and purpose of the Act:  Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J.

53    With particular regard to s 501 of the Act, their Honours went on to observe (at [72]): “The Act does not state what factors the Minister is bound to consider in determining whether or not to cancel a person’s visa.” They added that a reference to the subject-matter, scope and purpose of the statute demonstrated the breadth of the Minister’s discretion and concluded that “it does not seem possible to imply some obligation on the Minister’s part to consider specific factors, personal to the visa holder …” (at [73]–[74]). In my view, the two matters identified by Mr Anderson above fall into this category. They are not, therefore, relevant considerations that the Assistant Minister was bound to take into account in making the 31 August 2016 decision.

(iii)    Failing to afford procedural fairness

54    Mr Anderson contended that he had not been afforded procedural fairness essentially because he was not given the opportunity to make submissions on the effect of the 17 December 2014 decision when the Assistant Minister made the 31 August 2016 decision. I also reject this contention. As I have endeavoured to explain above, the 17 December 2014 decision was a nullity and of no effect under the Act – the Department eventually accepted as much when Mr Anderson was released from custody on 29 October 2015. That being so, there was nothing to be achieved in affording, and no denial of procedural fairness in not affording, Mr Anderson the opportunity to make submissions on the effect of that decision. Even if this were not so, I agree with the Assistant Minister that the letter that was sent to Mr Anderson on 4 November 2015 invited him to “provide any other information that [he felt] the decision-maker ought to take into account”. This invitation was sufficiently broad in its terms to include any information about, or comments in relation to, the effect of the 17 December 2014 decision that Mr Anderson wished to provide or make. I am therefore satisfied that Mr Anderson was not denied procedural fairness, as he has alleged, with respect to the 17 December 2014 decision.

(iv)    Unreasonableness

55    On this aspect, the essence of Mr Anderson’s complaint was that, in making the 31 August 2016 decision and, in particular, in considering whether he was a risk to the community, the Assistant Minister should have taken into account, but did not, the time Mr Anderson had spent in custody for his offences, and the time he had spent in immigration detention as a result of the 17 December 2014 decision. Mr Anderson sought to characterise this as both unreasonableness and a failure to take into account a relevant consideration. There is support for that approach in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 where Hayne, Kiefel and Bell JJ said (at [72]):

The more specific errors in decision-making … may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that “all these things run into one another”. Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is “manifestly unreasonable”. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.

(Emphasis added, citations omitted)

56    Accordingly, I will approach this aspect of Mr Anderson’s case on the basis that, if the Assistant Minister was bound to consider the time Mr Anderson had spent in custody and in immigration detention but failed to do so, then the resulting error could possibly be properly characterised as legal unreasonableness. However, whether it was time Mr Anderson spent in custody or detention, or the absence of an immediate risk to the community that was an obvious concomitant of such confinements, for the reasons I have already given above (see at [53]), I do not consider those matters are mandatory relevant considerations that the Minister was bound to take into account when making the 31 August 2016 decision.

57    Furthermore, even if those matters were mandatory relevant considerations, I agree with the submissions of the Assistant Minister that he did, in fact, have regard to the interaction between the time Mr Anderson had spent in custody or detention and the effect that had on the risk he posed to the community. So much is apparent from paragraph 29 of the Statement of Reasons, where the Assistant Minister stated:

In assessing the likelihood of Mr ANDERSON re-offending, I have considered that since his release from detention he has complied with his parole conditions, attained stability in his life and has familial support. Notwithstanding this progress, I find that Mr ANDERSON’s rehabilitation has been tested in the community for a relatively short time, being since October 2015, and the likelihood that he may re-offend remains ongoing.

(Emphasis added)

58    The latter reference emphasised above plainly refers to Mr Anderson’s release from immigration detention in October 2015. The above statement therefore demonstrates that the Assistant Minister took account of the fact that Mr Anderson was in immigration detention up to October 2015, but nevertheless considered he still posed a risk to the community because his “rehabilitation ha[d] been tested in the community for a relatively short time … and the likelihood that he may re-offend remaine[d] ongoing.”

59    Before leaving this issue, it is appropriate to add that, in reaching this conclusion, I have had regard to the decision of AZAFQ where the Court alluded to there being “tension” in the authorities about whether the risk of reoffending was a mandatory consideration when the Minister (or the Assistant Minister in this case) was exercising his or her discretion under s 501(2) of the Act. This “tension” was resolved in AZAFQ in the following terms (at [52] and [53]):

52    The Full Court stated at [37] in Ayoub that it was unnecessary, in the particular circumstances of that case, to resolve the various views concerning whether or not there are mandatory relevant considerations under s 501(2) … That was because the Full Court concluded in Ayoub that the Minister’s statement of reasons indicated that the Minister had properly addressed the fact of “risk” of re-offending and properly took it into account in the context of the other matters set out in the statement of reasons.

53    A similar approach to the “unresolved tension” has been adopted in two subsequent Full Court decisions (see Roesner at [23] and Brown v Minister for Immigration and Border Protection (2015) 235 FCR 88 at [38] per Rares, Flick and Perry JJ). It was concluded in both these cases that, even if the risk of harm was a mandatory relevant consideration, it was unnecessary to resolve the tension in the relevant authorities because the Minister’s statements of reasons in both cases revealed that the matter had in fact been considered.

(Emphasis added)

For reasons given above, I also do not consider that it is necessary to resolve that tension in this matter.

60    Finally on this issue, Mr Anderson also claimed that the Assistant Minister had made an illogical, irrational and unreasonable decision in “remak[ing]” a decision he had already made and in “recommit[ting] [Mr Anderson] to further detention” despite “having previously released” him (see [29(n)] above). Since I have concluded that the 17 December 2014 decision was a nullity and of no effect under the Act, the 31 August 2016 decision did not constitute “remaking” that decision. Further, since I have concluded that the Assistant Minister did consider the time Mr Anderson had spent in both custody and immigration detention, and the necessary dissolution of any risk to the community during that period, but nonetheless concluded that he still continued to pose such a risk, there is nothing about those aspects of the 31 August 2016 decision which permits the conclusion that that decision was illogical, irrational or unreasonable. For these reasons, I reject Mr Anderson’s contention that the Assistant Minister acted unreasonably in making the 31 August 2016 decision.

WERE ANY OTHER JURISDICTIONAL ERRORS COMMITTED IN MAKING THE 31 AUGUST 2016 DECISION?

61    Having addressed the grounds of jurisdictional error directly or indirectly connected with the 17 December 2014 decision, I will now briefly consider the various remaining bases upon which Mr Anderson relied to claim the 31 August 2016 decision was affected by jurisdictional error. They are essentially reduced to: the effect of Tesic ([25] above); the effect, if any, of the Direction ([26] above); and the broader question of unreasonableness ([29] above).

62    On the effect of Tesic, I generally agree with the Assistant Minister’s contentions at [28] above. Accordingly, I do not consider that any of the parts of the 31 August 2016 decision highlighted by Mr Anderson at [24] above breached the principles outlined in Tesic FC.

63    On the effect of the Direction, I also agree with the Assistant Minister’s contentions at [27] above that the decisions in Maxwell and Bochenski (with which I respectfully agree) establish that the Direction was not binding on the Assistant Minister. Furthermore, even if the Direction had been binding, I agree with the Assistant Minister’s contentions that he did, in fact, closely follow it in making the 31 August 2016 decision.

64    As to the broader unreasonableness issue, the role of this Court and the principles to be applied in considering whether an administrative decision is illogical, irrational or unreasonable, were elaborated by the Full Court in Stretton at [7], [8], [11] and [76] as follows:

7    … There is “an area of decisional freedom” of the decision-maker, within which minds might differ. The width and boundaries of that freedom are framed by the nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law, in particular, of reasonableness …

8    The content of the concept of legal unreasonableness … does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: see Li at [30], [66] and [105].

11    … The task 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. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

76    … I do not consider that the legal standard of unreasonableness goes so far as to effectively substitute the view of the Court exercising judicial review for that of the Minister. The Parliament has vested the authority to make that decision in the Minister, not the Court. It would appear that the primary judge may have overlooked an important constraint in the legal standard of unreasonableness, namely that there is an area within which an administrative decision-maker has “a genuinely free discretion” and in exercising judicial review it is insufficient that the review Court would itself have come to a different decision to that of the primary decision-maker …

(Emphasis added)

65    Having regard to these principles, I am not persuaded that any of the findings highlighted by Mr Anderson at [29] above are relevantly illogical, irrational or unreasonable. Specifically, in relation to the findings identified in all the subparagraphs above, I consider the corresponding paragraphs of the Statement of Reasons (see [17] above) provide logical, rational, reasonable reasons why the Assistant Minister came to those conclusions (for “j” and “k”: 11, 18, 19, 20, 26, 29, 30, 60 and 61; for “l”: 58 and 59; and for “m”: the cumulative effect of all of the aforegoing paragraphs). I am therefore satisfied that the Assistant Minister did not act unreasonably in reaching these findings.

CONCLUSION

66    For these reasons, I am not persuaded that the Assistant Minister committed any of the jurisdictional errors alleged by Mr Anderson in making the 31 August 2016 decision. Consequently, Mr Anderson’s application must be dismissed. I will hear from the parties on the question of costs.

Associate:    

Dated:    13 June 2018