FEDERAL COURT OF AUSTRALIA

Martin v Minister for Immigration and Border Protection [2018] FCA 893

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

LEE J:

a    introduction & background

1    By amended originating application filed in November 2017, the applicant seeks judicial review pursuant to s 476A(1)(c) of the Migration Act 1958 (Cth) (Act) of a decision made personally by the respondent (Minister) in July 2017 to cancel the applicant’s Class BF transitional (permanent) visa (Visa), pursuant to s 501(2) of the Act (Decision).

2    The applicant is a citizen of Spain, who first arrived in Australia as a four-year old child with his parents. The applicant’s family, including two children (one of whom is a minor), one step-child, his parents, his two older sisters and a nephew and a niece, all reside in Australia. The applicant has no contact with family in Spain. He has suffered anxiety, depression, bi-polar disorder and substance abuse.

3    The applicant was convicted and sentenced as follows:

(a)    in October 2012 of:

(i)    film person’s private parts without consent and sentenced to 12 months’ imprisonment (which was suspended);

(ii)    larceny and deal with property suspected proceeds of crime and sentenced to a supervised three-year bond;

(iii)    shoplifting and sentenced to four months (which was suspended);

(b)    in December 2014 of failing to comply with reporting obligations, and sentenced to two months and three weeks’ imprisonment;

(c)    in August 2016 of:

(iv)    fail to comply with reporting obligations, and sentenced to 12 months’ imprisonment with a non-parole period of five months;

(v)    goods suspected stolen, and sentenced to five months’ imprisonment;

(vi)    larceny, and sentenced to a 12-month bond.

4    In November 2013, the Department of Immigration and Border Protection (Department) notified the applicant that consideration was being given to cancellation of the Visa. Ultimately, in August 2014, the Department decided not to cancel the Visa.

5    On 21 April 2016 and again on 9 June 2016, the Minister participated in a ‘talk-back’ and interview programme on a Sydney radio station, 2GB, and expressed certain views on the cancellation of visas of persons convicted of criminal offences, in particular of persons convicted of sexual offences. I will return to the transcripts of these interviews below.

b    the decision

6    The Minister found that the applicant had a substantial criminal record because he had been sentenced to 12 months’ imprisonment for “fail to comply with reporting obligation”, and hence found that the applicant did not pass the character test (by reference to s 501(6)(a) of the Act) (at [6]-[8]). The Minister then considered whether to exercise his discretion to cancel the Visa (at [9]).

7    Under the heading “Protecting the Australian Community”, the Minister considered the Government’s commitment to protecting the community from harm as a result of criminal activity by non-citizens (at [10]), having regard to the applicant’s criminal conduct, the risk to the Australian community, the best interests of minor children and the expectations of the Australian community.

8    Under the heading “Criminal Conduct”, the Minister considered the applicant’s offending in detail, noting in particular that he viewed “sexual offences very seriously” (at [11]). He found that the applicant’s overall criminal history was serious, both in its cumulative effect and the number of convictions imposed (at [22]). He found that the imposition of sentences of imprisonment were an indication of the seriousness of the offending (at [19]) and that the “film person’s private parts without consent” offences were serious, given their sexual nature (at [11] and [20]). He further considered that the continuation of offending after receipt of a warning (see [4] above) added to the seriousness of the applicant’s conduct (at [21]) and noted that there were multiple convictions for failing to comply with reporting obligations (at [13]; Exhibit A at 68).

9    The Minister then considered the “Risk to the Australian Community” through reoffending (at [23]-[43]). The Minister accepted that the applicant was remorseful and had accepted responsibility for his offending (at [29] and [32]). He had concerns about the extent of the applicant’s rehabilitation, especially in respect of his drug dependency (at [40]-[41]). The Minister considered that the two convictions for breaching reporting obligations showed a disregard for the law (at [38]-[39]) and he did not accept that the claimed ongoing family support would stop him from reoffending (at [37]). The Minister found there was an ongoing likelihood that the applicant would reoffend, although he considered the risk of reoffending in a sexual manner was low. The Minister found that if reoffending did occur, psychological and property harm to the community could result (at [43] and [74]).

10    The Minister treated the “Best interests of minor children” affected by visa cancellation as “a” primary consideration (at [44]). He accepted that the applicant had a close relationship with his son and played an active role in his life (at [47]). He concluded that it was in the best interests of the applicant’s son not to cancel the Visa (at [49] and [72]). The Minister also considered that it was in the best interests of the applicant’s niece and nephew not to cancel the Visa, although he observed that any negative effects caused by cancellation were reduced, given that the applicant was not in a parental relationship with his niece and nephew, nor was he responsible for their daily care (at [50]-[52] and [72]).

11    The Minister stated that he was mindful that the Australian community would expect that non-citizens who commit serious crimes in Australia would have their visas cancelled (at [53]-[54]).

12    The Minister had regard to the strength, nature and duration of the applicant’s ties to Australia (at [55]-[63]). He considered that the Australian community would have a higher level of tolerance for the applicant’s offending, given he arrived at age four and commenced offending relatively late in life (at [56]). The Minister found that the applicant had strong family and personal ties to Australia and that he had contributed to the Australian community through his employment and business activities (at [63]). The Minister also accepted that cancellation of the Visa would cause emotional and practical hardship to members of the applicant’s family (at [61]).

13    In relation to impediments the applicant might face if he returned to Spain, the Minister noted that the applicant had a number of health concerns, but found that the applicant would have access to a comparable level of medical treatment in Spain to that available in Australia (at [65] and [70]). The Minister did not accept that the applicant’s language skills would prevent him from obtaining employment in Spain and found that the applicant was unlikely to face any substantial language or cultural barriers (at [68]). The Minister did accept that the applicant would suffer significant hardship if he returned to Spain, that it was likely that he would face difficulties in re-establishing himself there, and that it was likely he would suffer emotional hardship due to separation from his family (at [69]).

14    Under the heading “Conclusion”, the following was stated:

[71] I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act and (2) all other information available to me, including information provided by, or on behalf of Mr SUAREZ MARTIN.

[72] In considering whether or not to cancel Mr SUAREZ MARTIN’s visa, I gave primary consideration to the best interests of Mr SUAREZ MARTIN’s son, niece and nephew and have found that their best interests would be best served by not cancelling the visa.

[73] Mr SUAREZ MARTIN has committed a serious crime that of four counts of film person’s private parts without consent, which is of a sexual nature, and involved vulnerable members of the community, and Mr SUAREZ MARTIN and non-citizens who commit such offence should not generally expect to be permitted to remain in Australia.

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

[75] I found the above consideration outweighed the countervailing considerations in Mr SUAREZ MARTIN’s case, including the best interests of his child, niece and nephew, impact on family members, his health concerns, his length of residence in Australia and the significant hardship he will face in resettling in Spain. I have also considered the length of time Mr SUAREZ MARTIN has made a positive contribution to the Australian community through his past employment and business activities and the consequences of my decision for minor children and other family members.

[76] I am cognisant that where significant harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel the visa. This is the case even applying a higher tolerance of criminal conduct by Mr SUAREZ MARTIN, than I otherwise would, because he has lived in Australia since aged four.

[77] In reaching my decision I concluded that Mr SUAREZ MARTIN represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.

[78] Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Mr SUAREZ MARTIN’s Class BF transitional (permanent) visa under s501(2) of the Migration Act.

(Uncorrected)

c    a preliminary issue

15    On the first day of the hearing, on 21 December 2017, I set aside a notice to produce issued to the Minister and provided brief reasons, which I indicated I would expand upon in the final judgment. That notice was in the following terms:

1. Copy of any template, pro forma decision record or model decision record (including but not limited to any previous decision record as a template) used in the preparation of the decision record of Pedro Suarez Martin dated 13 July 2017.

2. Copy of any draft decision record provided to the Minister for Immigration and Border Protection, in respect of the exercise of his powers under section 501(2) of the Migration Act 1958 on 13 July 2017 in relation to Pedro Suarez Martin.

(Uncorrected)

16    During the course of submissions, only paragraph 1 of the notice to produce was pressed.

17    It was contended that the document sought was relevant to prove the existence of a policy said to have been applied to the applicant’s circumstances (a matter which I address below). It was said that such a template would demonstrate decision-making anterior to consideration of the particular circumstances of the applicant; that is, the adoption of a template would dictate the outcome of the decision before the stage of consideration.

18    I am not satisfied that the documents referred to in paragraph 1 of the notice to produce would be apparently relevant in the sense that any document, if produced, would be reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case: see Seven Network Limited v News Limited (No. 11) [2006] FCA 174 at [6]. The existence or absence of a template does not assist in determining whether or not the Minister gave proper, genuine and realistic consideration to the applicant’s case and otherwise considered the applicant’s case according to law. Whether such consideration, as recorded in writing, occurred by the creation of a bespoke, free-form document or by the population of an underlying template is not apparently relevant to the issues I am required to consider.

19    For these reasons, I acceded to the Minister’s application to set aside paragraph 1 of the notice to produce.

D    the grounds of the application

20    The grounds of review as set out initially in the amended originating application were multifarious and lengthy. Following the filing of further submissions, it became possible to summarise the applicant’s grounds of review as follows:

(1)    The Minister’s decision was affected by apprehended bias on the basis of a number of alleged actions of the Minister, taken cumulatively (Apprehended Bias Contention).

(2)    The Minister failed to give proper, genuine and realistic consideration to the applicant’s case as the application of an alleged ‘policy’ could only result in a decision adverse to the applicant (Genuine Consideration Contention).

(3)    The application of the ‘policy’, and the finding that the applicant was at risk of reoffending in a sexual manner and that reoffending would cause significant harm (despite the earlier finding that if the applicant reoffended, such reoffending would cause property and psychological harm), rendered the Minister’s decision illogical or unreasonable (Reasonableness and Illogicality Contention).

(4)    Failure to take into account the effect of any deterioration in the applicant’s parents’ health on their ability to care for the applicant’s son as a matter relevant to determining the effect of any adverse exercise of discretion on the best interests of an Australian child (Relevant Consideration Contention).

E    consideration

E.1    Apprehended Bias Contention

E.1.1    The Applicant’s Contentions

21    The applicant called in aid a number of facts which, taken together, were said to illustrate the presence of apprehended bias.

22    The first was views expressed by the Minister in radio interviews in which he participated in April 2016 and June 2016. These two interviews were considered by Farrell J in Zaburoni v Minister for Immigration and Border Protection [2017] FCA 654 at [53]-[59]. The full context of the interviews is important and I gratefully adopt her Honour’s summation of those interviews as follows:

First Hadley interview

[53] The interview on 21 April 2016 occurred shortly after the High Court allowed Mr Zaburoni’s appeal but before the Queensland District Court made its sentencing decision.

[54] In the course of the interview, the Minister discussed the gaoling of a person convicted of people smuggling, the stopping of a boat by the Sri Lankan navy and Australia’s arrangements with Sri Lanka concerning that activity, the deportation of a non-citizen who had been convicted of the manslaughter of a police officer, an Irish national who had been convicted of assault and domestic politics (particularly in Queensland). Following the discussion concerning the man convicted of manslaughter of the police officer, Mr Dutton said:

Mr Dutton:    Well, Ray, (ah) firstly, it’s (ah) it’s a good thing (ah) that (ah) these people have gone. Our community is a safer place for not having these criminals (ah) walking around amongst us. So the work we’re doing, (ah) and we’ve spoken about it a lot over the course of the last 12 months, a lot of work we’re doing in cancelling visas of people who are here as non-citizens, they commit crimes and our numbers are up by hundreds of percent over the last 12 months. (ah) I’m really proud that we’ve been able to (ah) kick out some pretty serious criminals, who I think would have reoffended.

Now, the difficulty, of course, is (ah) that we’ve got a generous legal system, there’s lots of (ah) pro bono work around, lawyers that (ah) do work for free in this area and the Commonwealth spends millions of dollars each year. In fact I think I’m the most litigated person in the Commonwealth, (ah) the Minister for Immigration gets sued all the time, (ah) we get injuncted and we fight these cases. (ah) In the end, (ah) in many of them we’re successful and that’s been the case in relation to this matter. (ah) This person has gone back and good riddance really, I think we’re a better place without them.

[55] Later in the interview, following discussion of issues concerning the Irish national who could not be located, the following interchange occurred:

Mr Dutton:     Well Ray, (ah) it’s hard again to talk about individual cases until they’re finalised, but (ah) many people will come on a tourist visa, (ah) some may come on a working visa, they may come on a partner visa. (ah) So we obviously have millions of people moving across our borders each year and we scrutinise (ah) applications as best we can (ah) within the law. We do a lot of work with intelligence and law enforcement agencies, (ah) but some people come across our borders (ah) who are intent on doing the wrong thing and (ah) in these cases (ah) we work with the police authorities to try and track (ah) individuals down and there are different ways in which we can try and locate people and (ah) if it’s (ah) possible, and very quickly, cancel their visas and deport them.

So it will depend on the individual (ah) circumstances, to what visa they came on but (um) we have pretty significant powers under the Migration Act to cancel visas of people that have committed crimes or that have done the wrong thing by Australians.

Mr Hadley:    Now, in relation to this bloke, one would imagine he probably got some sort of work visa or holiday visa. Once he’s caught, served the 12 months, it would almost be a fait accompli, you’d just pack him off, wouldn’t you?

Mr Dutton:    If there’s a 12 month (ah) sentence, then it’ll be an automatic (ah) revocation of his visa because he fails the character test. If he’s (ah) involved in a (ah) motorcycle gang, (ah) if he’s a child sex offender, there are a number of ways (ah) in which and, you know, we’ve cancelled over I think almost about eleven hundred in the last 12 months from memory - so a pretty significant number and again I want to ramp that number up over the next year.

(um) And I think this has been one of the really significant achievements (ah) of this government; we’ve been able to make our society a safer place and that’s what getting control of our borders is about. (ah) We want to welcome people that want to come here, spend money, do business, (ah) we want to welcome them in record numbers, but (ah) we want to at the same time cancel visas of people that aren’t going to do the right thing.

[56] The final interchange related to Mr Zaburoni’s case as follows:

Mr Hadley: Okay, just one final one; this circus acrobat that we have spoken about previously, Godfrey Zaburoni. The High Court upheld the appeal, which I can’t understand, that he didn’t deliberately or intentionally infect his former partner with HIV despite the fact that he had unprotected sex with her and she didn’t know he was HIV positive. He is now going to be resentenced. He has already been in for three years and it is obvious that, come I think Friday or early next week, he will be released. He got an Australian visa 16 years ago. What do you do with him? Can he be sent back to Zimbabwe from whence he came?

Mr Dutton: Well I don’t, again, I don’t want to prejudice a case, but this guy (ah) on what I, on what I’ve seen publicly is just a grub from start to finish. And (ah) I think we need to have a very close look (ah) at this case with the police. We will wait and see what happens with sentencing and all of the rest of it. But people, again, without commenting on an individual case, if you look at (ah) these sort of facts in a case it (ah) it makes it pretty compelling for us to cancel visas but I want to have a look at it (ah, um) in detail because (ah) we’ll see what options are there and again, (um) we don’t want people of bad character here. We want to welcome with open arms good people who visit our country, (ah) but we are going to continue to clampdown very hard on criminals and people who really do a great deal of harm to people in the Australian society.

Mr Hadley: I don’t expect you to put yourself at odds with the High Court and nor would I. BUT I would simply repeat what I said before. When they upheld his appeal, finding he didn’t intentionally infect his former partner with HIV, given he knew that he had HIV, didn’t tell her he had HIV, had unprotected sex with her, I don’t know where intentional doesn’t form part of what the High Court should be all about. I was just stunned by the decision, I can’t believe the decision.

Mr Dutton: Yeah, look mate, I, I think (ah) people will make their own judgements when they look at (ah) these cases and no doubt they can provide their feedback (ah) to wherever it might be; the courts or wherever else (ah) but (ah) you and I get into trouble all the time for talking about court cases, where we’re completely (ah) at odds with, (um) you know, just, just disbelieving of outcomes. But (um) look I (ah) I think (ah) this case is obviously still before the courts, so let’s hope, (ah) let’s hope it’s a sensible outcome.

Second Hadley interview

[57] On 9 June 2016, the Minister again participated in a radio interview with Mr Hadley. During the interview, the Minister discussed matters relevant to his portfolio among other things.

[58] Mr Hadley mentioned what he understood to be the facts concerning a non-citizen. The non-citizen was said to have stalked his wife when she left him after 25 years of marriage having discovered that he had sexually abused their children over a long period. The man was convicted of child sex offences resulting in him being gaoled in 2007 for a minimum of nine years. The man was about to be released from prison. Mr Hadley asked the Minister where his office was up to with “this creature”.

[59] The conversation proceeded:

Mr Dutton:    Yeah well Ray, you’ll remember (um) over a number of (ah) interviews we’ve discussed (ah) the changes that we’ve made to the legislation which makes it easier for (ah) the Minister of the day to cancel visas (ah) on a character basis. So if people fail [the] character test we can cancel their visas and send them back to their country of origin. Now, this person will be automatically cancelled under the character provisions, (ah) will be taken into immigration detention and then deported.

Obviously there’s a review process that they can go through and appeal and (ah) whatever legal opportunities are open to them, but, (ah) there’s an automatic cancellation for people that have been convicted of child sex offences and (ah) indeed over (ah) the period that (ah) that I’ve been Minister I think we’ve (ah) cancelled (ah) the visas of almost 60 people that’ve been charged with rape and sexual offences (ah) and (ah) and we’re looking through lots of cases, working with the police, (ah) to cancel more because we, we will save future victims and we will prevent crime from happening by deporting these people. They’re here as guests of our country, they’re non-citizens and if they commit these sorts of heinous crimes they can expect to have their visas cancelled and to be deported.

Mr Hadley:    Now the other one I’ve spoken about is a Gold Coast circus performer found guilty of intentionally infecting his girlfriend with HIV, 37-year-old Godfrey Zaburoni, diagnosed with HIV in 1998 when he was performing with a touring circus in Adelaide. He was then sentenced to nine years in gaol in 2013, but, inexplicably, the High Court overturned that decision back in April saying he didn’t intentionally infect the girl despite the fact she didn’t know he was HIV positive. Last week he was re-sentenced to five years imprisonment for the lesser charge then released immediately because he’d been in gaol for three years and two months. I know you’ve been looking at whether Zaburoni will face deportation back to his native Zimbabwe, have you made a decision on him?

Mr Dutton:    (ah) Ray, I haven’t (ah) as yet because (ah) the Department obviously is going through the process at the moment and it (ah) imagine there’s a (ah) there’s a lot of (ah, ah) legal questions that need to be answered and the process is that a (ah) a notice would be served and then there’s an appeal period and (ah) I’m a decision maker in relation to that particular case so I don’t want to publicly comment on it, but (um) suffice to say (ah) I’ve followed the case very carefully, very closely, and (ah) I have a (ah) a very low tolerance (ah) frankly for people who are (ah) committing serious sexual offences against women, against children, against anyone and I think we’ve demonstrated (ah) over the last 12 months that we have been (ah) tough, within the law, to cancel visas (ah) wherever possible and deport people at record numbers and I’m waiting on this matter to come up (ah) to make (ah) to make a determination, but

Mr Hadley:    Okay.

Mr Dutton:    (ah) I’ll be able to report back to you at some time soon.

(Original underlining removed, underlined words are those relied upon by the applicant in this proceeding)

23    It was said that Minister’s comments, made in public during a radio broadcast, “plainly” outlined the Minister’s preferred position on the applicant’s situation, creating an expectation that the Minister would act in accordance with his statements. The applicant contended that the underlined words in the transcript would lead a lay observer to draw the following conclusions:

(a)    that the Minister had a very low tolerance for serious sexual offenders;

(b)    that the Minister had been actively involved in the process of visa cancellation;

(c)    that the Minister had significant powers to cancel visas;

(d)    that the Minister was proud of the Government’s track record in cancelling visas;

(e)    that the Minister intended on ‘ramping up’ visa cancellations;

(f)    that the Minister was of the view that persons who engage in serious sexual offences can expect to have their visas cancelled;

(g)    that the Minister had certain views about how he would conduct himself when considering the exercise of his power.

24    The second matter relied upon by the applicant was the weight given by the Minister to the applicant’s convictions for sexual offences, notwithstanding that: the relevant offences had occurred in 2012 and had already been the subject of consideration for visa cancellation in 2014; the Minister accepted that the offending was “out of character” and caused by mental health issues and drug and alcohol use; the Minister noted that the applicant had successfully completed rehabilitation in relation to the sexual offences and did not require further treatment; and the Minister accepting that the applicant was remorseful and at low risk of reoffending.

25    It was said that the Minister placed significant weight to the applicant’s conviction for ‘film private parts’. It was further said that this was the only conviction considered in the conclusion and that the Minister considered it alone outweighed the primary consideration, along with the other considerations considered. The emphasis on sexual offending was said to arise from the fact that the Minister considered “sexual offences very seriously”; the applicant’s offences as “serious”; that the applicant should not “generally expect to be permitted to remain in Australia” following his conviction for those offences; that the Australian community should not tolerate any further risk of harm, and the finding inherent in the Minister’s decision that any further sexual offences would result in “significant harm”.

26    The third matter relied upon was an allegation that the Minister had applied a policy which the applicant simply could not meet, namely that the Minister could not “rule out further offending”. It was said that this demonstrated that the Minister unlawfully fettered his discretion and dictated the outcome in the applicant’s case.

27    The gravamen of the applicant’s allegation is identified by the following logic expressed in the Decision:

(a)    that should the applicant reoffend, the “Australian community could be exposed to harm”;

(b)    “the Australian community should not tolerate any further risk of harm”;

(c)    therefore, in order to exercise the discretion favourably, the Minister had to “rule out the possibility of further offending”;

(d)    the “above consideration outweighed countervailing considerations” as the Minister was cognisant that where “significant harm could be inflicted on the Australian Community even strong countervailing considerations are generally insufficient…not to cancel the visa”.

28    This contention was supported by affidavit evidence identifying some 20 cases in which a similar form of words was used. The use of these specific phrases in multiple decisions, in relation to vastly different individual circumstances, was said to be a clear expression of policy and an abdication by the Minister of the proper exercise of his discretion.

29    The fourth matter was that it was inherent in the Decision that any subsequent commission of a sexual offence would result in significant harm in circumstances where the Minister had not made a finding that the applicant’s past sexual offending had caused significant harm. It was contended that there was no explanation of the reasoning as to how the Minister found that if the applicant reoffended it “could cause psychological or property harm to a member of the Australian community” (at [43]), yet later referred to the “significant harm” that might arise if the applicant reoffended (at [76]).

30    The fifth matter relied upon was the failure by the Minister to defer the decision in order to receive updated reports, which were pending, as to the risk of the applicant committing further sexual offences.

31    Sixthly, the applicant placed weight on the Minister’s decision to consider the applicant’s case personally. It was contended that the fair minded lay observer would know that the Minister did not have to exercise the power personally but nevertheless decided to in this case.

E.1.2    Relevant Principles

32    For present purposes, it was common ground between the parties that the test to be applied in these circumstances is whether a fair-minded lay observer, informed of the discretion the Minister is called upon to exercise personally under s 501(2) of the Act, might form the view that the Minister might be so committed to a conclusion as to the exercise of his discretion that his mind would not be open to persuasion by evidence and arguments submitted by or on behalf of the applicant: Zaburoni v Minister for Immigration and Border Protection [2017] FCAFC 205 at [64] (Griffiths, Moshinsky and Bromwich JJ) (Zaburoni FC). The hypothetical lay person is an objective observer of the proceedings and will be assumed to be properly informed as to their nature, the matters in issue and the conduct the subject of complaint: Re Refugee Review Tribunal;  Ex parte H [2001] HCA 28; (2001) 75 ALJR 982 at 990 [28]-[29] per Gleeson CJ, Gaudron and Gummow JJ

33    Three steps must be considered before an apprehension of bias can be established. First, there must be an identification of the matter which might lead the Minister to decide the case otherwise than on its merits. Secondly, there must be an articulation of the logical connexion between that matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 345 [8]. Thirdly, consideration must be given to the reasonableness of the apprehension of the feared deviation being caused by the matter identified in the first step: Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at 155-156 [58]-[59].

34    It is also worth emphasising that there is a distinction between judicial decision-making and the role occupied by a Minister when called upon to make administrative decisions. As Gleeson CJ and Gummow J said in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 529 [63]:

There are…consequences that flow from the circumstances that a power is vested in, and exercisable by, a Minister…they include the consideration that the conduct of a Minister may need to be evaluated in the light of his or her political role, responsibility and accountability.

35    Their Honours went on to make the point that decision-makers “sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion” at 531 [71]. Importantly, their Honour made the point at 539 [102] that:

It would be wrong to apply to [the Minister’s] conduct the standards of detachment which apply to judicial officers or jurors. There is no reason to conclude that the legislature intended to impose such standards upon the Minister, and every reason to conclude otherwise.

36    It follows that the Minister was entitled to “legitimately form and hold views before coming to consider the exercise of power in a particular case” (Jia Legeng at 566 [192]) and could speak freely about Government policy and state his views, and was not required to avoid conducting himself in a way that might expose a judge to a charge of apprehended bias (see Zaburoni at [69] and [90]).

37    Finally, it is important to note the warning of the High Court in Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at 446 [67] that:

…an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided.  An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue.  To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension).  Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made.  And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.

(Italics in original, emphasis added)

(See also the adoption of this approach in Zaburoni at [73])

E.1.3    Disposition

38    For the following reasons, I reject the applicant’s case that the Minister’s conduct, taken cumulatively, gives rise to a reasonable apprehension of bias.

39    First, as to the radio interviews, the Minister’s comments were not directed to the applicant’s circumstances; they were general in nature. Importantly, during the interviews, the Minister commented that “it’s hard to talk about individual cases until they are finalised” and “without commenting on an individual case”. Further, when speaking of another visa holder, the Minister referred to the need to “have a very close look at this case” and “I want to have a look at it in detail because, we’ll see what options are there”. I accept the Minister’s submission that these statements are inconsistent with the Minister having a fixed, immutable view about the applicant’s case, or a view that he would decide cases otherwise than by reference to their merits.

40    Similarly, the Minister’s intention to “ramp up” the number of cancellations, read fairly and in spite of the infelicitous use of language at that stage of the interview, can be taken no higher than an expression of intention to consider the exercise of power under s 501 of the Act. So much is consistent with the Minister’s later statement regarding antecedent decisions which “demonstrated over the last 12 months that we’ve been tough, within the law, to cancel visas wherever possible and deport people at record numbers” (emphasis added). Cancelling visas within the law is properly the function of the Minister, and itself denotes a willingness to consider the merits of each case: see Jia Legeng at 539 [102]. Likewise, the statement that the Minister wanted to “clampdown very hard on criminals” is no more than a statement of policy consistent with the object of the Act: Zaburoni at [85].

41    Secondly, as to the second, third and fourth matters relied upon by the applicant, I would risk falling foul of the High Court’s warning in Michael Wilson by placing weight on the Minister’s reasons. The relevant inquiry is as to the apprehension of bias, which is not directed at the question of whether the Minister had “in fact prejudged an issue”.

42    In any event, dealing with the alleged existence of the policy, I do not consider that it is proven that the policy existed. On a fair reading, by saying at [76] that he was “cognisant that where significant harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel the visa”, the Minister was saying that, in some cases, given the gravity of the consequence of reoffending, he might find that even strong countervailing considerations will not outweigh the risk to the community. The Minister was not thereby saying that countervailing considerations would never be sufficient. Further, the Minister’s statement at [73], that “non-citizens who commit such offence (sic) should not generally expect to be permitted to remain in Australia” is significant and suggests that the Minister was not applying the alleged policy. Taken as a whole, the reasons do not demonstrate the application of a policy that the Minister had to rule out any risk of offending in order to render a decision favourable to the applicant: see also Zaburoni FC at [54]-[61].

43    Dealing with the allegation that the inflexible application of policy bears upon the question of a reasonable apprehension of bias (and leaving aside the applicant’s analysis with reference to the reasons), I accept the Minister’s submission that the use of similar language in other decisions does not in and of itself give rise to a reasonable apprehension of bias. The application of policy does not invoke notions of prejudgment or bias: Plaintiff S297/2013 v Minister for Immigration and Border Protection (No 2) [2015] HCA 3; (2015) 255 CLR 231 at 243. As the fair-minded lay observer would know, a decision-maker is entitled to take into account a policy, so long as it is not applied inflexibly and without regard to the merits of the case (as the principle is explained in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420-421).

44    Thirdly, in circumstances where the Minister was under no obligation to wait for any updated report, and where there was no indication as to when any such report might be available, I do not consider that a reasonable apprehension of bias arises. In other words, I do not consider that because the Minister did not defer the decision, the reasonable bystander would apprehend that the Minister might be so committed to a conclusion as to the exercise of his discretion that his mind would not be open to persuasion by evidence and arguments submitted by or on behalf of the applicant.

45    Fourthly, no reasonable apprehension of bias arises in respect of the Minister’s decision to personally make the decision. The reasonable lay observer would understand that the Minister has the power to make a decision under s 501(2) personally or to delegate the exercise of that discretion. Decision-makers can be expected to apply the law and relevant policies in a consistent and predictable way: Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; (2012) 200 FCR 223 at 235-236. It is difficult to imagine how the decision to exercise the power personally can give rise to a reasonable apprehension that the Minister might not consider the circumstances of the applicant’s case as he was required to do.

46    For the foregoing reasons, looked at individually and cumulatively, the Apprehended Bias Contention must fail.

E.2    Genuine Consideration Contention

47    The applicant contended that the Minister failed to give proper, genuine and realistic consideration to his case on the basis that the Minister applied the alleged policy that the Minister had to rule out the possibility of further offending. As can be seen, this ground relies upon the success of the applicant to make out the existence and application of the policy in the present circumstances.

48    Allegations of a failure to give “proper, genuine and realistic” consideration need to be evaluated carefully so that they do not morph into impermissible merits review: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at 360-361. In Carrascalao, the Full Court observed that the legal obligation to give consideration to the merits of the case had to be meaningful, in the sense of being “proper, genuine and realistic”. The question with which the Court is concerned, as explained in Carrascalao at 361 [35] and 364 [46], is whether the Minister engaged in an “active intellectual process” in considering the merits of the applicant’s case.

49    I reject the applicant’s contention for two reasons.

50    First, and as explained above, I do not consider that the Minister applied the ‘policy’ alleged by the applicant. In any event, even if the Minister applied some sort of policy, the applicant has not established that the Minister failed to apply his mind properly to the particular factual circumstances of the applicant’s case.

51    Secondly, and in any event, the weight to be given to a matter is for the decision-maker alone, and invitations for the Court to consider the weight given by the Minister may ultimately invite merits review. The applicant places undue emphasis on the concluding remarks of the Minister. As is well known, the reasons are to be considered as a whole: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. The Minister is entitled to form a view about the nature of offending and his reasons demonstrate consideration of the applicant’s circumstances, including his offending. The Minister not only considered the applicant’s criminal conduct and the risk to the community, but also matters favourable to the applicant, including, for example, remorse (at [29]), acceptance of responsibility for his actions (at [32]), ties to Australia (at [55]-[63]), the best interests of his son, and his niece and nephew (at [44]-[52]), hardship to family and the extent of impediments if removed (at [58]-[70]). The words “could not rule out the possibility of further offending” in [74] must be read together with the reasons as a whole, including the weighing exercise at [11]-[43]. Plainly, in the context of the Minister having found at [43] that there was an “ongoing likelihood” that the applicant would reoffend, the wording at [74] builds on that finding.

52    In the circumstances, no failure to give proper, genuine and realistic consideration is demonstrated.

E.3    Reasonableness and Illogicality Contention

53    The applicant raises three substantive points.

54    First, it is said that the application of the alleged policy (requiring the Minister to rule out the possibility of further offending) was illogical or unreasonable because it imposed an impossible test.

55    Secondly, the applicant impugns the Minister’s reference at [76] to the “significant harm” the applicant might cause if he reoffended. It is said that there is a “disjunct” between this reference in the conclusory remarks and the Minister’s finding at [43] that if the applicant reoffended, this “could cause psychological or property harm to a member of the Australian community”. It is said that the reasons indicate that the harm was considered so significant that it outweighed the countervailing considerations, and that it was the foundation upon which the Decision rested.

56    Thirdly, the applicant contends that the Minister’s finding that the applicant was at a risk of reoffending in a sexual manner (at [43]) was unreasonable and/or illogical given:

(a)    the Minister’s acceptance that the sexual offending was out of character; that the applicant had successfully completed all required rehabilitation; and that he was remorseful; and

(b)    the Minister failed to take into account that the applicant had received a wholly suspended sentence in respect of the sexual offences.

57    The principles relating to legal unreasonableness were helpfully summarised as follows in Muggeridge at [35] by Charlesworth J (with whom Flick and Perry JJ agreed):

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

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

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

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

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

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

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

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

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

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

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

58    Bearing these principles in mind, I now turn to consider the applicant’s contentions.

59    For reasons already explained, even if there had been the application of policy in the circumstances of the applicant’s case, which has not been proved, what matters is whether the Minister engaged in an active intellectual process in considering the merits of the applicant’s case. The suggestion that this did not occur has already been rejected above.

60    As to the second complaint, contrary to the applicant’s allegation, I do not consider the Minister was in error in concluding that there was a risk of future reoffending in a sexual manner. In finding that the applicant posed an “unacceptable risk of harm” to the community, the Minister pointed not only to the harm that might result if the applicant did reoffend, but also the risk that the applicant would reoffend, including in a similar manner to the past (see [43] and [73]-[77]). In any event, the Minister’s reasons must be read as a whole, appropriately recognising the evidence before the Minister and the overall content of his reasons. When this is appreciated, it can be seen that the Minister’s conclusion was open to him. Without seeking to be exhaustive, so much is clear from:

(a)    the applicant’s own submissions that he was “considered to be at a low risk of reoffending”: at [34] and Exhibit A at 97 and 105;

(b)    the Minister’s reasoning that despite the applicant’s claims to have addressed his substance abuse and mental health issues (being the factors which had driven his sexual offending), there was evidence from August 2016 in the form of the sentencing remarks of a Magistrate that indicated that the applicant still had drug dependency and mental health issues: at [40] and Exhibit A at 68;

(c)    the Minister’s conclusion that, having regard to the continued substance abuse and mental health issues and their link to the applicant’s offending, he had concerns about the applicant being fully rehabilitated: at [40]-[41];

(d)    the applicant’s continued offending despite his claim to have learned from his experiences in gaol (at [35]);

(e)    the applicant’s continued offending despite a previous warning regarding visa cancellation (at [39]), the fact that his family support had not prevented offending (at [37]) and the Minister’s view that the applicant’s conviction for failing to comply with reporting obligations showed a disregard for the law (at [38]).

61    The continued existence of the factors that led to the applicant’s previous offending logically supports a risk of future offending. This is unexceptionable (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575), and the preceding summary indicates that the conclusion does not lack intelligible justification or involve a process of reasoning that was irrational or illogical.

62    As to the applicant’s third complaint, there was nothing illogical or irrational in the Minister’s statement that significant harm could be inflicted on the Australian community. The question to be posed is “whether a decision-maker could reasonably have come to the conclusion” the Minister did and does not involve the Court interposing the conclusion it itself thinks is relevant: see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at 8-9 per Allsop CJ.

63    The Minister’s conclusion that the community could be exposed to harm is based on the applicant reoffending in a similar fashion as he did previously: at [43] and [74]. At [43], as has already been explained, the Minister found that if the applicant did engage in further criminal conduct of a similar nature, it could cause psychological or property harm to members of the community. The applicant himself conceded that this is “logically consistent with [his] prior criminal conduct”. There is nothing illogical or unreasonable about the Minister assessing that, if the applicant did reoffend, “significant” harm could be inflicted; the assessment of the seriousness of the harm that could be inflicted is ultimately an evaluative judgment for the Minister: compare Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 351 ALR 153 at 162-163 [38]-[41]; see also Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 139 FCR 505 at 517 [43] per Wilcox J. Further, I accept the Minister’s submission that the present circumstances are relevantly distinguishable from Lyons v Minister for Immigration and Border Protection [2017] FCA 1381 in that here the Minister expressly took into consideration the fact that a suspended sentence was ordered: at [16]; Exhibit A at 76-77.

64    Even though, in the circumstances of the applicant’s ties to Australia, other decision makers may well have rationally come to a different decision, the Minister’s decision is not impugned by legal unreasonableness, or irrationality or illogicality. Accordingly, this ground fails.

E.4    Relevant Consideration Contention

65    The applicant contends that the Minister fell into error in failing to take into account a relevant consideration, being the effect of any deterioration in the health of the applicant’s parents on their ability to care for his son. It is contended that this consideration is a matter relevant to determining the effect of any adverse exercise of discretion on the best interests of an Australian child.

66    I do not consider that this ground is made out.

67    First, it must be borne in mind that the Minister already concluded that it was in the best interests of the applicant’s son, and niece and nephew, that the Visa not be cancelled.

68    Secondly, the Minister did take into account the impact of visa cancellation on the applicant’s parents’ health, and accepted, favourably to the applicant, that the applicant’s family would experience “practical hardship” and that some of his parents’ health conditions “may be exacerbated, furthering their hardship” (at [58]-[61]). This acceptance was in circumstances where the Minister was aware that the applicant’s parents cared for his son (at [46]; Exhibit A at 92-95). Nevertheless, the material does not demonstrate that a submission was made to the Minister that the deteriorating health of the applicant’s parents affected their ability to care for his son. It may well be that such a submission would have been “worthy of serious consideration”, but it cannot be said that it was “seriously advanced” to the Minister such that its omission from the Minister’s reasons demonstrates an error: see Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276-277. In all the circumstances, I can identify no jurisdictional error in the Minister failing to consider the issue further than he did, including after having found that the applicant’s son’s best interests were served by not revoking the Visa.

F    conclusion & orders

69    Despite counsel for the applicant skilfully advancing every argument that could be advanced in this unfortunate case, it follows from the above that the application must be dismissed with costs.

Associate:

Dated:    15 June 2018