FEDERAL COURT OF AUSTRALIA

Greene v Assistant Minister for Home Affairs [2018] FCA 919

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs, of and incidental to the cost of the application, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

LOGAN J:

1    The applicant, Mr Charles Greene, is a citizen of Sierra Leone. In or about September 2010, he and other members of his immediate family came to Australia. Their entry into Australia was lawful. That was the result of being granted what is termed a Global Special Humanitarian Class XB subclass 202 visa under the Migration Act 1958 (Cth) (the Act).

2    On 1 December 2012, the applicant committed the offence of manslaughter contrary to s 310 of the Criminal Code Act 1899 (Qld). He was convicted of that offence in the Queensland Supreme Court on 2 April 2015. At the same time, he was convicted of other lesser offences, one count of receiving stolen property, one count of fraud and one count of assault occasioning bodily harm whilst armed and in company. The latter group of offences were committed on diverse dates in 2011, more particularly detailed in a national police certificate, which is to be found at p 27 of the court book. In respect of the offence of manslaughter, the applicant was sentenced to imprisonment for nine years. In respect of the other offences mentioned, he received for each of them a sentence of 12 months imprisonment to be served concurrently with the sentence imposed in respect of the manslaughter offence.

3    At the time of the offending conduct mentioned, Mr Greene remained a citizen of Sierra Leone, rather than Australia. A sequela to that offending conduct and the sentences imposed, in conjunction with Mr Greene’s lack of Australian citizenship, was that, on 7 February 2017, he was given notice by an officer in the Department then known as the Department of Immigration and Border Protection on behalf of its Minister (the Minister), that a decision had been made, as s 501(3A) of the Act dictated, to cancel his Global Special Humanitarian visa. By that letter, Mr Greene was invited to make a representation about whether that cancellation decision should be revoked in the exercise of the discretionary power found in s 501CA(4) of the Act.

4    It is common ground in this case, and incontestably so, that the sentences of imprisonment imposed upon Mr Greene were such that the Minister was correctly satisfied that Mr Greene did not pass the character test, as defined in s 501 of the Act.

5    Mr Greene took up the opportunity offered to make a representation to the Minister as to why there was another reason the original visa cancellation decision should be revoked. There was, over the course of 2017, an exchange of correspondence between those advising Mr Greene and officers of the Minister’s department in relation to the making of that representation. This culminated in further submissions and related supporting material being provided to the Minister’s department by those advising Mr Greene on 21 December 2018. Those further submissions are to be found in the court book; see pp 208 to 229. They provide, with respect, an eloquent and persuasive case for the exercise, benignly, of the discretion vested in the Minister. That is not to say that the Minister was in any way bound to accept those submissions, only to observe that Mr Greene has been well served by his advisers in terms of the pleading of his case administratively.

6    The same also may, with respect, be observed in respect of the pleading of his case before the judicial branch of government. Once again though, forensic eloquence and erudition does not axiomatically lead to forensic success for the Minister’s case was also well put at the hearing.

7    On 7 February 2018, the Honourable Alex Hawke, MP, Assistant Minister for Home Affairs (Assistant Minister), exercised the discretion referred to in s 501CA(4), such that he declined to revoke the cancellation decision. In so doing, the Assistant Minister furnished to Mr Greene reasons for his decision.

8    Thereafter, Mr Greene instituted proceedings in the original jurisdiction of this Court for the judicial review of the Assistant Minister’s decision. The jurisdiction vested in the Court by the Act for such review is not materially distinguishable from that constitutionally vested in the High Court pursuant to s 75(v) of the Constitution.

9    The scheme found in the Act in relation to the cancellation of visas on the basis of character and, as a subset, satisfaction as to the existence of a substantial criminal record and the related ability as a matter of discretion to cancel and to revoke such cancellation decisions has a protective purpose; see Falzon v Minister for Immigration and Border Protection (2018) 92 ALJR 201.

10    In this application Mr Greene advances three bases upon which he alleges jurisdictional error on the part of the Assistant Minister. They are:

(1)    a failure to take into account a relevant consideration, namely the primary interests of Mr Greene’s child;

(2)    a failure to take into account another alleged relevant consideration, namely Australia’s non-refoulement obligations; and

(3)    a related risk of harm, should Mr Greene return to Sierra Leone and that the making of the decision was unreasonable.

11    The latter alleged jurisdictional error had as its particular focus that the Assistant Minister’s decision to refuse to revoke the cancellation, despite Mr Greene’s post-traumatic stress disorder and the unique nature of the manslaughter offence for which he had been convicted and sentenced was precipitated by an exceptional event. It was put that there was an error in logic in the Assistant Minister’s risk assessment, both in these circumstances and also coupled with a failure, so it was alleged, to take into account the needs of his young daughter as a primary consideration. It will be necessary to elaborate further on the circumstances of the manslaughter offence. For the moment it should be observed that it was accepted by the Assistant Minister that, as a result of horrific experiences in his formative years in Sierra Leone, Mr Greene did indeed suffer from post-traumatic stress disorder.

12    I shall consider each of the grounds of review in turn.

13    As to those based on a failure to take into account relevant considerations, the starting and also end point must, in my view, be the observations made on that subject by Sir Anthony Mason in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 (Peko-Wallsend), especially at pp 39 to 40. The upshot of those observations is that, unless a statute either expressly or by necessary implication makes it mandatory that a particular administrative decision-maker take into account a particular consideration in the exercise of a discretionary power, the consideration concerned is not relevant in the sense that a failure to take it into account constitutes a jurisdictional error. That is not to say that regard to the subject matter, scope and purpose of the legislation concerned and the provision conferring of the discretionary power may not be such as permissibly to allow a particular consideration to be taken into account by an administrative decision-maker, only that that decision-maker would not be bound to take such a consideration into account.

14    In the present case it is not, in my view, necessary to determine whether the best interests of minor children and non-refoulement obligations are relevant considerations in the sense described in Peko-Wallsend. It is clear enough on the face of the Act that there is no express provision that these must be taken into account. But the Assistant Minister has chosen, in a way which the breadth of conferral of the discretionary power most certainly allows, to take these considerations into account. Of course, having so done, he must give each realistic consideration but in my view he has done this in relation to the best interests of minor children. The Assistant Minister’s reasons relevantly include the following:

13.    In considering whether or not I am satisfied that there is another reason why the original decision should be revoked, I acted in conformity to Article 3 of the United Nations Convention on the Rights of the Child, and treated the best interests of any affected children under 18 in Australia as a primary consideration and have concluded that it is in the best interests of Mr GREENE’s daughter for the original decision to be revoked.

14.    Mr GREENE has one Australian citizen daughter, Amelya Sarah Greene, born on 3 October 2012 to his then partner Ms Zalma Ibrahim. Mr GREENE was present for Amelya’s birth and was an active parent to her in the first two months of her life.

15.    Mr GREENE was taken into custody on 2 December 2012, two months after Amelya was born. While Mr GREENE was incarcerated at the Arthur Gorrie Correctional Centre in Brisbane, he received regular visits from his daughter. These visits ceased when Mr GREENE was transferred to the Maryborough Correctional Centre, where he maintained contact with Amelya via three to four phone calls per week. He sent her cards and gifts and also received paintings from his daughter. Since being detained on Christmas Island, Mr GREENE has established communication with Amelya via electronic means (Messenger).

15    In the face of that overt consideration, the Assistant Minister’s submission that he had taken the best interests of Mr Greene’s daughter into account as a primary consideration must be accepted. Notably, at para 19 of his reasons, the Assistant Minister expressly found that the best interests of Mr Greene’s daughter was such that the decision should be revoked. That though was not made a determinative consideration by the Act. Rather, it was a consideration the Assistant Minister permissibly and reasonably regarded as one favouring revocation. The Assistant Minister was entitled to have regard to other considerations, particularly having regard to the protective purpose of the regime under which he was exercising discretionary power.

16    Similar considerations attend the alleged jurisdictional error in respect of international non-refoulement obligations. As to these, the Assistant Minister’s reasons include the following passages:

22.    As part of his representations seeking revocation of the original decision to cancel his visa, Mr GREENE submits that he will face harm if returned to Sierra Leone due to his family’s military and political associations – as outlined above.

…

28.    I consider that it is unnecessary to determine whether non-refoulement obligations are owed in respect of Mr GREENE for the purposes of the present decision as he is able to make a valid application for a Protection visa, in which case the existence or otherwise of non-refoulement obligations would be fully considered in the course of processing the application.

17    It was put, though, that, notwithstanding such reference by the Assistant Minister, there was nonetheless to be found an error of the code referred to by Bromberg and Mortimer JJ in BCR16 v Minister for Immigration and Border Protection [2017] 248 FCR 456 (BCR16). The submission made on behalf of Mr Greene was that the Assistant Minister had been put on notice of Mr Greene’s significant traumatic history, his past in Sierra Leone and his apprehensions as to hardship and difficulty, if not worse, in resettling in Sierra Leone. It was put that it was unclear from the Assistant Minister’s reasons as to whether he was trying both to consider Mr Greene’s return to Sierra Leone, which it was said he had to do consistent with a possibility that he may be owed protection obligations. It was further put that the Assistant Minister’s reasons on this subject contained an artificiality, if not triviality, compared with descriptions in medical reports before the Assistant Minister which described circumstances in Sierra Leone as horrific. Reference was also made to the recent refusal by the Full Court in Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 (BHA17) to regard the earlier Full Court’s judgment in BCR16 as wrongly decided.

18    The riposte to this made on behalf of the Assistant Minister was that the public administration circumstances against which both BCR16 and BHA17 had been decided had changed by virtue of the issuing by the Assistant Minister on 5 September 2017 of a direction under s 499 of the Act. That direction requires a decision-maker assessing a protection visa to:

First assess the applicant’s refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to section 36(2)(AA) before considering any character or security concerns.

19    The existence of that particular direction persuaded Flick J in Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali) that, adverting to that practice by the Assistant Minister in reasons was sufficient recognition, even assuming the consideration was relevant, of non-refoulement and related obligations. In this case, the Assistant Minister’s reasons, at para 29, evidence a like recognition on this direction and related departmental practice. It suffices to say that, for the reasons given by Flick J in Ali, with which I respectfully agree, there is no substance in the allegation that non-refoulement obligations have not been taken into account.

20    That then leaves the question as to whether the Assistant Minister’s decision is nonetheless to be attended with unreasonableness.

21    As a starting point, it is necessary to recall the express approval in Minister for Immigration and Ethnic Affairs v Wu Shan Lian (1996) 185 CLR 259 of observations earlier made in the Full Court of this Court to the effect that the reasons of the administrator are not narrowly to be scrutinised with an eye for error. It is only natural, given the obligation to furnish reasons that are imposed by statute for there is none at common law, (see Public Service Board of NSW v Osmond (1986) 159 CLR 656), that they will receive scrutiny in the context of a consideration of whether jurisdictional error is present. But it needs to be remembered that their purpose is to inform why an administrative decision has been made and also, by imposing the discipline of giving reasons, to endeavour to improve the quality of administrative decision making.

22    The Assistant Minister’s reasons in Mr Greene’s case are hardly perfunctory.

23    Another consideration is also to be derived from Sir Anthony Mason’s judgment in Peko-Wallsend, where he observed at p 39:

The limited role of a court reviewing the exercise and administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion and a decision made within those boundaries cannot be impugned.

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.

His Honour then cites further authority:

I say “generally”, because both principal and authority indicate that in some circumstances, a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is “manifestly unreasonable”. This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation, at pp.230, 233-234, in which his Lordship said that it would only be made out if it was shown that the decision was so unreasonable that no reasonable person could have come to it.

A little later in his reasons for judgment in Peko-Wallsend, at p 41, Sir Anthony Mason added, in respect of the error ground of unreasonableness:

However, in its application, there has been considerable diversity in the readiness with which courts have found the test to be satisfied.

24    The course of subsequent judicial authority in Australia in relation to the content and application of unreasonableness as a ground of review amply bears out, with respect, the accuracy of his Honour’s observation.

25    The reference by Sir Anthony Mason to Wednesbury must now be read in light of the following observation made by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 (Li) at [68]:

Lord Greene MR’s oft-quoted formulation of unreasonableness in Wednesbury has been criticised for “circularity and vagueness”, as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness nor should it be considered the end point. The legal standard of unreasonableness should not be considered to be limited to what is, in effect, an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way and his judgment in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing a judicial discretion, which it may be observed was settled in Australia by House v The King before Wednesbury was decided. And the same principles evidently informed what was said by Dixon J about the review of administrative decision in Avon Downs Pty Ltd v Federal Commissioner of Taxation, which was decided less than two years after Wednesbury, at a time when it was the practice to follow decisions of the Court of Appeal in England which appeared to have settled the law in a particular area.

26    After Li, there have been further attempts both to apply the observations just quoted, as well as further attempts to clarify what exactly is the content of the unreasonableness ground of review. The latter notably include the Full Court’s judgment in Minister for Immigration and Border Protection v SZVFW (2017) 248 FCR 1 at [38], where there is an attempt to distil from prior authority general principles in relation to this jurisdictional error ground. As a summary of such attempts this endeavour is, with respect, helpful, but whether it adds much to what was said in Li at [68] may be moot.

27    Another judgment of the Full Court which has considered the content of the unreasonableness ground of review is Muggeridge v Minister for Immigration and Border Protection (2017) 351 ALR 153, especially at [35] (Muggeridge) in the judgment of Charlesworth J with which Flick and Perry JJ agreed.

28    Muggeridge loomed large in the submissions made on behalf of Mr Greene as to why, in this case, there should be a like conclusion that the Assistant Minister’s reasons were indicative of unreasonableness. The following passages in Muggeridge were particularly relied upon:

46.    It is to be accepted that s 501(2) of the Act is purposive in the sense that it is directed (at least in part) to matters affecting the safety of the Australian community.  However, to say that the statute implicitly recognises that all persons who have previously committed an offence are more likely to offend in the future is to state the implication too highly.  As has already been observed, the circumstance that a person cannot satisfy the Minster that he or she passes the character test is the factual circumstance that enlivens the power to cancel the visa.  The fact of prior offending will, in most if not all cases, invite consideration of the question of whether the person in question in fact presents some risk to the Australian community and the starting point in that consideration will invariably be the fact of the prior offending.  But that is all.  The statute does not, of itself, supply an answer to the factual question of whether a particular visa holder has a propensity, however slight, to re-offend.

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

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

…

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

56.    In the result, the Minister exercised the discretion in a manner that purported to advance an object of the statute, and yet there is no evident rational connection between that legitimate object and the particular materials upon which the Minister is said to have relied.  A rational connection in a case such as the present should not depend upon unnatural implications drawn from the reasons that cannot be reconciled with the express findings concerning Mr Muggeridge’s demonstrated rehabilitation, his serious physical debilitation and the absence of evidence that he had had any connections with like motorcycle clubs for more than two decades.

29    An application of Muggeridge recently by Thawley J in Ogbanna v Minister for Immigration and Border Protection [2018] FCA 620 (Ogbanna) was also relied upon, particularly the following passages:

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

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

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

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

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

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

30    It is now necessary to refer to the circumstances of the manslaughter offence as the Assistant Minister found them to be by reference to the transcript of proceedings before the Supreme Court of Queensland on 2 April 2015:

67.    On the evening of 1 December 2012, Mr GREENE attended a birthday party in Station Road, Woodridge. Mr GREENE parked his car on the street in front of the property. At approximately 10pm a street fight broke out. The fight escalated to what the sentencing judge characterised as a street riot. His Honour commented that there was no suggestion that Mr GREENE took any part in the fighting or rioting.

68.    Mr GREENE’s car was damaged, however the damage did not preclude Mr GREENE from being able to drive his car. Mr GREENE got in his car and drove away from the house and then drove back up Station Road. It was on this return trip that he struck 17-year old Jordan Tukaki, causing him multiple injuries including massive head injuries from which he subsequently died.

69.    His Honour noted there were very significant divergences in the evidence about the events immediately before and after Mr GREENE struck the deceased. However, there was no evidence that Mr GREENE was exceeding the 60 kilometre per hour speed limit. His Honour also noted that there were up to 100 people or more on Station Road at the time – some were involved in the riot and some were attempting to leave the area. A good Samaritan who stopped her car to render assistance to Jordan Tukaki was compelled to leave the scene as she and her vehicle were attacked.

70.    In sentencing, His Honour acknowledged Mr GREENE’s admission that he unlawfully killed Jordan Tukaki. His Honour also noted that the basis for Mr GREENE’s plea was that he made a conscious decision to drive towards a group of people on the road, but had no intention to kill anyone or cause grievous bodily harm to anyone. In sentencing, His Honour also weighed the seriousness of Mr GREENE’s offence and the devastating impact on the victim’s family.

31    The Assistant Minister’s reasons disclose extensive reference to various specialist reports concerning Mr Greene’s post-traumatic stress disorder condition. They also disclose express recognition by the Assistant Minister, not just that the Queensland Parole Board had been disposed, on his first application, to grant him parole subject to the impact of immigration detention, but also to the terms of that parole. The Assistant Minister’s consideration of the offending conduct reports concerning Mr Greene and other behaviours by him culminated in the following passage in the Assistant Minister’s reasons upon which particular attention was focused on his behalf in submissions:

127.    I have considered the findings of Associate Professor Freeman who advises that the risk Mr GREENE will re-offend is most closely linked with his ability to avoid similar situations in the future. The PCL-R and HCR-20 tools discussed above indicate he can be considered in the low risk category for violent recidivism, consistent with his successful parole application. If Mr GREENE can avoid further high risk situations, his prognosis for the future can be considered positive. However, the risk of further erratic behaviour may be increased if Mr GREENE does not receive treatment for his PTSD.

128.    I accept that clinical tests assess Mr GREENE as having a low risk of recidivism. However, I am aware of Associate Professor Freeman’s comments that if Mr GREENE does not receive PTSD treatment, the likelihood of him re-offending is increased and I find this, coupled with Mr GREEN’s rehabilitation being untested in the community, poses an unacceptable risk to the Australian community.

129.    I find that there is a likelihood that Mr GREENE will reoffend, albeit a low likelihood.

130.    I consider that should Mr GREENE reoffend in a similar manner, it could result in physical harm or death to members of the Australian community.

32    What was put on Mr Greene’s behalf was that the Assistant Minister had never really addressed what the reoffending which would, or could, look like in the future and the circumstances as to how that offending would arise. It was put that the offence that resulted in Mr Greene’s imprisonment was manslaughter arising from a riot, which triggered his post-traumatic stress disorder. It was further put that the Assistant Minister’s reasons evidenced a concern that he had not yet been treated for post-traumatic stress disorder, but that the reason for this was that though his parole orders required, as indeed they did, him to comply with treatment as directed by a supervising corrective services officer, there was no treatment available on Christmas Island, and his immediate placement, if released in Queensland, and availability of that treatment was said to be such that it was not logical for the Assistant Minister to have used this absence of experience under treatment in the community as an adverse consideration.

33    Viewed in isolation, the reference, at para 128, to absence of rehabilitation being tested in the community does offer an analogy with Ogbanna, which was a particular application in term of reasoning found in Muggeridge. These cases, though, are inevitably fact-specific as well as reasons-specific as to whether or not there is indeed to be found a want of logicality and hence unreasonableness in a Assistant Minister’s reasons.

34    The task of assessing risk was acknowledged in Muggeridge, permissively, to involve a degree of hypothecation. So much necessarily flows from observations made by the High Court in Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 (Guo). Further, there is, in my view, analogy to be found in observations made in Fardon v Attorney-General (Qld) (2004) 223 CLR 575 by Gleeson CJ in relation to the assessment of risk in the context of another type of protective regime.

35    Unlike in Muggeridge, the Assistant Minister was not confronted with an individual who had, since a particular motorcycle gang association which had given rise to offending conduct, no such association or evidenced interest in such association for many years. The interval between Mr Greene’s arrival in Australia and his conduct in December 2012, which gave rise to the offence of manslaughter, was relatively compressed. In that interval, as the Assistant Minister noted, there were some low-level offences, but there were offences. Further, apart from the offence of manslaughter, there were other offences also noted by the Assistant Minister, committed in 2011.

36    The Assistant Minister, in his reasons, permissively concluded that Mr Greene’s post-traumatic stress disorder was a significant contributing factor to his conduct when faced with a violent and threatening situation. He in turn noted that, in the course of Mr Greene’s imprisonment in respect of that and the 2011 offences mentioned, that Mr Greene had been involved in a number of incidents. These, the Assistant Minister regarded as of great concern. He particularly noted that Mr Greene had been named as the perpetrator in prisoner-on-prisoner violence in the course of his incarceration. This indicated to the Assistant Minister an inability to recognise and diffuse stressors, an inability to cope with challenging circumstances, and a propensity to reoffend.

37    The Assistant Minister also took into account medical evidence that Mr Greene’s risk of further erratic behaviour may be increased, if he did not receive treatment for his post-traumatic stress disorder, and that the likelihood of his reoffending was likewise increased. It was just a fact, and it was recognised that this was the result of his circumstances, that he had not received treatment for that post-traumatic stress disorder. It was also just a fact that his rehabilitation was untested in the community, but that was not the only fact, as it was in Ogbanna. Instead, there were, having regard to the nature of the offending conduct here, earlier behaviours and behaviours in prison. These provided a basis upon which the Assistant Minister might and did conclude reasonably, that there was a risk of reoffending in a violent way such as the offence of manslaughter in particular circumstances. The Assistant Minister especially adverted to the likelihood that such circumstances might exist in the future in para 115 of his reasons thus:

115.    Due to his repeated and heartfelt expressions of remorse, I find that Mr GREENE is genuinely remorseful for his offending. Further, I find that he has demonstrated insight into the circumstances of his offending and his ongoing vulnerability. No information has been presented by or on behalf of Mr GREENE that provides any details of PTSD treatment, if confronted by a similar situation in which he feels threatened, notwithstanding the low likelihood of Mr GREENE finding himself involved in another street riot, Mr GREENE may have a similar response, thus posing a risk to the Australian community.

38    This assessment of the likelihood was not confined to a street riot but rather similar situations in which Mr Greene felt threatened.

39    This type of reasoning is, in my view, exactly the type of reasoning which was regarded as permissible for an administrator in Guo. It is nothing to the point, so far as an exercise of judicial power is concerned, that Mr Greene’s background in Sierra Leone and the particular tie which he has so obviously kept with his daughter, notwithstanding the difficulties in so doing whilst incarcerated, as well as what the Assistant Minister accepted was genuine remorse for his conduct and his plans for starting life afresh, all excite sympathy. It needs firmly to be borne in mind that value judgments in this regard are consigned to the Assistant Minister, not the judiciary. Within the limits of legality, including unreasonableness, the Assistant Minister is answerable for his discretionary value judgments not to the judicial branch of government, but to the Parliament under our Westminster system of government and, given a free press, to a wider court of public opinion.

40    It only comes to this. So far as unreasonableness is concerned, the Assistant Minister has made a value judgment which is logical and supported by the material before him. I do not see that the result is unreasonable in the way described in the authorities mentioned. More particularly, I do not see this as a case at one with either Muggeridge or Ogbanna.

41    It necessarily follows from the foregoing that the application must be dismissed.

Associate:

Dated:    18 June 2018