FEDERAL COURT OF AUSTRALIA

Splendido v Assistant Minister for Immigration and Border Protection (No 2) [2018] FCA 1158

ORDERS

THE COURT ORDERS THAT:

1.    The application be allowed.

2.    A writ of certiorari issue quashing the decision of the respondent dated 28 February 2017.

3.    A writ of mandamus issue requiring the respondent to re-determine according to law whether to revoke the cancellation of the BF Transitional (Permanent) visa.

4.    The respondent pay the applicant’s costs of the proceeding, as agreed or assessed.

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

REASONS FOR JUDGMENT

steward J:

Introduction

1    The applicant was born in Italy and immigrated to Australia in 1967 when he was two years old. He has lived here ever since. In 2015, he held a BF Transitional (Permanent) visa. This was cancelled on 2 December 2015 pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the “Act”) on the ground that he had a substantial criminal record and was serving a full-time sentence of imprisonment. On 28 February 2017, pursuant to s 501CA(4)(b)(ii) of the Act, and following the receipt of submissions from the applicant and his family, the Assistant Minister for Immigration and Border Protection (the “Minister”) decided not to revoke that cancellation decision. By originating application dated 22 March 2017, the applicant now seeks judicial review of the Minister’s decision in this Court.

Background

2    The facts were not in dispute. Until he was 46 years old, the applicant, having been educated at St Anne’s Primary School, East Kew, and subsequently at De La Salle College, had led an apparently respectable life pursuing his business of painting and decorating. He had three different relationships which had produced six children, aged, at the date of the Minister’s decision, between 2 and 24 years old.

3    At the age of 46, for reasons which are unclear, the applicant’s life changed very much for the worse. He commenced committing a series of crimes. The following summary of his conduct is extracted from the written submissions of Mr Poynder of counsel, who appeared for the applicant:

On 11 May 2011 the applicant appeared before the Melbourne Magistrates Court and was sentenced to 15 months imprisonment, to be suspended for 24 months on condition of good behaviour, for the following charges:

•    possess cannabis (3 charges);

•    possess amphetamine (3 charges);

•    possess methylamphetamine (3 charges);

•    possess gamma hydroxybutanoic acid;

•    possess LSD;

•    possess ecstasy (2 charges);

•    possess Ghb;

•    possess prescription drug;

•    deal in property suspected to be proceeds of crime (4 charges); and

•    fail to answer bail/traffick methylamphetamine, possess controlled weapon.

On 13 July 2012 – while serving his suspended sentence – the applicant appeared before the Melbourne Magistrates Court and was convicted of the following further charges:

•    traffick methylamphetamine;

•    possess ecstasy;

•    possess cannabis;

•    traffic Ghb;

•    possess drug of dependence (2 charges);

•    possess methylamphetamine (3 charges);

•    traffick amphetamine (3 charges);

•    recklessly cause injury (3 charges);

•    threat to inflict serious injury;

•    go equipped to steal/cheat;

•    retention of stolen goods (4 charges);

•    reckless conduct; and

•    endanger serious injury.

The applicant’s suspended sentence was revoked and he was ordered to serve 15 months imprisonment on all charges. It appears that he served his sentence at the Beechworth Correctional Centre, which is a minimum security prison in Beechworth, Victoria.

On 21 January 2013 the applicant appeared before the Ringwood Magistrates Court and was convicted of using a drug of dependence and fined $200.

….

On 28 July 2013 the applicant appeared before the Melbourne Magistrates Court and was convicted of false imprisonment and assault and given a community corrections order for 18 months to perform 200 hours of unpaid community work.

….

On 24 June 2015 the applicant appeared before the Collingwood Magistrates Court and was convicted and ordered to serve a term of imprisonment for 8 months for the following further charges:

•    contravene family violence order;

•    contravene conduct condition of bail (harass witness) (2 charges);

•    persist contravene family violence order;

•    intentionally cause injury (2 charges);

•    breach of community corrections order;

•    make threat to kill; and

•    unlawful assault.

(Footnotes omitted)

4    In the midst of all this, on 2 May 2013 the Department of Immigration and Citizenship (the “Department”), as it was then known, issued the applicant with a notice of decision not to cancel his visa and a warning that any further offending would weigh heavily against him if his case were to be reconsidered.

5    Following cancellation of his visa in 2015:

(1)    the applicant and his family wrote a number of submissions to the Department. This included completion of a “Personal Details Form” supplied by the Department, and a submission from the applicant himself. The Department also received three letters from the applicant’s parents, four letters from his current partner, three letters from a former partner, two communications from his sister and seven letters from his oldest children. All of these expressed great affection for the applicant and pointed out his disconnection with Italy. The applicant does not speak Italian and has no family left there. The applicant’s family expressed a passionate concern that he not be deported; and

(2)    the Department on two occasions wrote to the applicant seeking further information about his youngest children, about an interview which had taken place at one time by the Department of Human Services, and about the circumstances of his oldest children. The applicant responded on each occasion.

The Minister’s Decision

6    The Minister was represented by Ms Symons of counsel who, in her written submissions, fairly summarised the content of the Minister’s decision in the following terms, which I adopt:

In the revocation decision, the Assistant Minister:

7.1    found that the applicant had made representations in accordance with s 501CA(4)(a) of the Act;

7.2    found that the applicant did not pass the character test, based on his ‘substantial criminal record’ with the result that s 501CA(4)(b)(i) of the Act was not met;

7.3    found it was in the best interests of the applicant’s four minor children, and to a lesser extent, his two nieces or nephews, for the cancellation decision to be revoked;

7.4    accepted that members of the applicant’s immediate family, including his two adult children, his elderly parents, sister, former wife and current partner would experience hardship of varying quality and degree if the cancellation decision was not revoked and took this into consideration, along with the applicant’s positive contribution to the community for many years, through his employment;

7.5    considered the extent of impediments to the applicant if he was removed from Australia to his home country of Italy and found that as a result of the applicant’s lengthy residence in Australia, the absence of family support in Italy, his age, his lack of linguistic and cultural knowledge and health issues, that a decision not to revoke the cancellation decision would involve significant hardship to the applicant;

7.6    had regard to the consideration of the protection of the Australian community and in that context referred to the applicant’s various convictions and sentences that were recorded and handed down in 2011, July 2012, 2014 and June 2015 and found that the applicant’s criminal record was serious;

7.7    had regard to the consideration of the risk to the Australian community and in that context:

7.7.1    referred to the programs undertaken by the applicant but noted that the applicant had not provided further detail of the courses nor evidence of their completion, and gave their rehabilitative impact less weight as a result. The Assistant Minister also noted that any benefit from such programs was yet to be tested in the community, outside of the restrictive nature of prison and immigration detention;

7.7.2    noted that despite the applicant’s submissions to the contrary, his family and parental obligations had provided little in the way of protection against his offending since 2011;

7.7.3    referred to the formal warning that the applicant had received from the Department on 2 May 2013 and found that the applicant’s offending subsequent to its receipt was indicative of a disregard for the law;

7.7.4    found, in light of the applicant’s sustained offending over the past five years, his proven attitude towards conditional liberty and the untested nature of his rehabilitation, that there was a likelihood that the applicant would reoffend and that any further offending could result in physical harm to and impose costs on, members of the Australian community.

7.8    concluded that the applicant represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of the applicant’s children and other matters identified as militating toward the revocation of the cancellation decision; and

7.9    found that he was not satisfied, for the purposes of s 501CA(4)(b)(ii) of the Act that there was another reason why the original decision to cancel the visa should be revoked.

(Footnotes omitted)

7    The foregoing summary of the Minister’s decision shows that, in his view, there were factors that strongly supported revocation of the visa cancellation. These included that:

(1)    the best interests of the applicant’s younger children were that he should remain in Australia;

(2)    the applicant had previously made a positive contribution to Australia;

(3)    the applicant’s family, especially his elderly parents and older children, would suffer emotional distress if he were sent to Italy; and

(4)    the applicant, himself, would experience significant emotional and financial hardship in re-establishing himself in Italy.

8    The Minister was nonetheless of the view that the applicant represented an unacceptable risk to the Australian community. The two key findings in that respect were at [83] and [92] of the reasons for decision as follows:

In light of [the applicant’s] sustained offending over the past five years, his proven attitude towards conditional liberty and the untested nature of his rehabilitation such as it is, I find that there is a likelihood that [the applicant] will reoffend. I consider that further offending of a similar nature to his previous offending, that being violence related, drug related and property related offences could result in physical harm to a member or members of the Australian community as well as imposing direct and indirect costs to the community.

…

In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that [the applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children and other, minor family members, as a primary consideration, and any other considerations as described above. These include his lengthy residence and bonds, employment, and familial ties to Australia, and the hardship [the applicant], his family and social networks will endure in the event the original decision is not revoked

Legislative Framework

9    Section 501(3A) of the Act provides:

(3A)    The Minister must cancel a visa that has been granted to a person if:

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

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

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

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

10    Section 501CA of the Act provides:

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

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

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

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

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

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

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

(ii)    particulars of the relevant information; and

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

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

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

(b)    the Minister is satisfied:

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

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

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

(6)    Any detention of the person that occurred during any part of the period:

(a)    beginning when the original decision was made; and

(b)    ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7)    A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.

Grounds of Appeal

11    There were originally three grounds of appeal. The first ground was a challenge to the constitutional validity of s 501(3A). This was abandoned in light of the High Court’s decision in Falzon v Minister for Immigration and Border Protection [2018] HCA 2. The remaining two grounds of appeal were in these terms:

The respondent failed to complete the task required of him under s 501(CA)(4) of the Migration Act 1958 (Cth) (the Act) when considering whether to revoke a decision under s 501(3A) to cancel the applicant’s visa, by failing to take into account the factual circumstances of the applicant’s criminal conduct.

Particulars

(a)    In assessing whether – pursuant to s 501(CA)(4)(b)(ii) of the Act – there was another reason why the original decision to cancel the applicant’s visa should be revoked, the respondent (at [83] and [90]) found that, if the applicant reoffended in a similar nature or fashion, the Australian community could be exposed to physical harm or great harm.

(b)    In making the above finding, the respondent (at [62]-[66]) assumed, without any evidentiary basis, that the applicant’s criminal convictions involved a level of violence which made them very serious.

(c)    In fact, the respondent had no information about the nature or fashion of the applicant’s offending and was not therefore able to assess the level of violence involved in the offending or the possible effect of any reoffending upon the Australian community.

(d)    The respondent should not have proceeded with making the finding referred to above, in paragraph (a), without having any information about the nature or fashion of the applicant’s offending.

The respondent made findings of fact which had no evidentiary basis; namely:

(a)    that “the court viewed the offending as very serious” (at [70]);

(b)    that “further offending of a similar nature to his previous offending, that being related, drug related and property related offences could result in physical harm to a member or members of the Australian community ...” (at [83]); and

(c)    that “the Australian community could be exposed to great harm should [the applicant] reoffend in a similar fashion” (at [90]).

12    It was accepted that, practically, grounds one and two were different descriptions of what was, in substance, the same complaint about the findings made by the Minister:

(1)    about the seriousness of the offences committed;

(2)    about the likelihood that the applicant will re-offend; and

(3)    about the risk of harm to the Australian community if the applicant were to re-offend in a “similar fashion”.

In each case, the gravamen of the applicant’s attack was that the Minister had limited his consideration of the risk of harm to a reading and analysis of the applicant’s National Police Certificate (the “Certificate”) which recorded basal information about each offence for which he was convicted. The Certificate only gave information about the court involved, the date of sentencing, the offence in respect of which the applicant had been charged (described in only a few words) and any resulting term of imprisonment or other “court result”. By way of illustration, the applicant’s most recent offence was recorded in the Certificate in these terms:

Contravene Family Violence Intervention Order

13    Before me, the applicant accepted that it was open to the Minister to infer from the contents of the Certificate that the offences committed were of a serious nature. That acceptance is consistent with the following observation of the Full Court of this Court in Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at [73] and [75]:

Contrary to the apparent findings of the primary judge, it was open to the Minister to conclude, as she did (at Reasons [15], extracted earlier) that the sentence imposed on Mr Eden was “indicative of the seriousness of his offending”. The fact that the sentence was wholly suspended did not mean that the offence was not very serious.

….

It may be accepted that the discussion in the Reasons concerning the seriousness of Mr Eden’s offending conduct was brief and somewhat cursory. The broad generalisations in the Reasons concerning the seriousness with which the community views sexual offences were also far from illuminating or helpful. Nevertheless, the Minister’s view that Mr Eden’s offending was “very serious” was a view that was open on the facts and was not in any sense irrational or illogical.

14    In the applicant’s submission, it was, however, impossible to determine from a spartan description of the offences committed, what risk existed that the applicant might re-offend in a similar way, and what risk existed of harm to the Australian community. For example, in relation to the offence referenced above, the applicant submitted that this contravention covered a broad spectrum of offensive behaviour and could include conduct of a less serious kind, such as the sending of emails or text messages to a protected person. Whether the description of this offence referenced more serious or less serious behaviour could not be ascertained from the brief words deployed. Nor could the risk of re-offending and thus the risk to the community. In these particular circumstances, in the applicant’s submission, the power conferred on the Minister by s 501CA(4) required him to do more and to make enquiries beyond reading the Certificate and drawing inferences from its contents. Sentencing remarks of the presiding Magistrate should have been obtained and considered, and if these were not available, the Department should have interviewed the applicant and obtained more information about the nature of each offence. The police might have been approached to ascertain what records they had retained. Failure to do these things constituted a failure to complete the statutory task before the Minister.

15    The applicant did not suggest that the Minister was obliged in every case to make investigations beyond the contents of a police certificate. The need for investigation, and the extent of it, would depend upon the facts of each case. As Wigney J observed in Te Puke v Minister for Immigration and Border Protection (2015) 230 FCR 499 at [61]:

It does not follow, however, that the Minister is bound, in the Peko-Wallsend [(1986) 162 CLR 24] administrative law sense, to take into account every or any particular facts or factors personal to the visa-holder that might be relevant to the exercise of the s 501(2) discretion in the particular circumstances of the case. It is ultimately up to the Minister to decide, in the light of the matters put before him (or her), what facts are relevant and what weight should be given to them. In some cases, a failure by the Minister to take into account certain facts concerning the offence or offences committed by the visa-holder may indicate error on the Minister’s part. It may, for example, indicate that the Minister failed to address at all the merits of the visa-holder’s case, or failed to give proper and genuine consideration to the risk of harm in the particular circumstances, or even made a legally unreasonable or irrational decision. That will depend on the particular facts and circumstances of the case and the particular fact or facts that it is alleged the Minister ignored. The point is, however, that the error in such a case is best addressed in these terms, rather than as a failure to take into account a mandatory consideration.

16    In a similar way, the second ground was developed. There was no evidentiary basis, it was contended, for the findings made that further offending of a “similar nature could result in physical harm” to members of the Australian community. Such particular findings were not open to be made from the contents of the Certificate. Its contents were too vague.

17    In that respect, the applicant placed great reliance on the reasons of North J in Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29. In that case, the impugned decision was one made to cancel a visa on the ground that the applicant had not passed the character test pursuant to s 501(2) of the Act. One of the issues which the Minister considered in that case was the risk of harm if the applicant were not to be deported, and, in turn, this required the Minister to consider the seriousness of the applicant’s offending. Like this case, the Minister only considered a bare statement of the charges with which the applicant had been convicted. North J said at [91]:

…in the present case the Minister had no information from the sentencing magistrate about the offending. The circumstances involved in the offending were not revealed save for the bare statement of the charges themselves. It was not possible for the Minister, acting rationally, to characterise the offending as serious without information about the circumstances in which the offences occurred.

North J decided that the findings made by the Minister that the offending was “serious” were legally unreasonable; they were “without an evident and intelligible justification”. At [93] North J reasoned as follows:

The information on which the Minister relied for his assessment that the offences were serious was the statement of the offences, the sentences imposed, the sentences which would have been imposed but for the plea of guilty, and the fact that the appellant was placed on the sex offender register. The statement of the offences alone did not justify the conclusion that the appellant’s offending was serious because the offences charged were capable of encompassing a large range of offending conduct from the merry drunken flasher in a public place to the calculated conduct in private of a sexual predator. The practical effect of the sentences as a result of both the part suspension and the significant concurrence of the terms of imprisonment could not, without more, justify conclusion that the offending was serious. Likewise, because registration as a sex offender followed as a mandatory consequence of the convictions, the registration of the appellant could not advance the question of the seriousness of offending.

18    Whilst not putting his case on the same grounds as illogicality or legal unreasonableness, the applicant nonetheless relied upon the foregoing reasoning in support of both grounds one and two of his application.

19    Kenny and Perry JJ decided Cotterill on different grounds and relevantly said at [135]:

As the reasons of North J indicate, there are other troubling aspects of the Minister’s decision in this case. In view of the conclusion we have reached on ground 3, we would not explore these aspects further.

20    The applicant also relied upon a decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424, which was another case concerning the exercise by a Minister of a power to cancel a visa under s 501(2) of the Act. Mortimer J made the following observations about a Ministers’ task in assessing the risk of harm at [110] and [116]:

It is notable that the Minister refers to the “potential risk” and says “should” the applicant reoffend. That is not the language of a decision-maker who has for himself assessed the likelihood of reoffending and reached a conclusion about it. It is the language of a decision-maker who is, at best, speculating about whether a person might reoffend. That is not the task in assessing risk of harm to the Australian community. The task is more concrete than that. It is rooted in an assessment of the characteristics of the particular applicant — not only his or her previous offences, but all aspects of his or her history, and the “dynamic factors” to which I have referred. Consideration of those factors must then be combined with consideration of what kind of offences the applicant might commit in the future — bearing in mind this may or may not be the kind of offences an applicant has committed in the past — with some evidentiary basis being disclosed for that consideration.

…

If the Minister had addressed the likelihood of the applicant reoffending, it is to be expected that one of the first sources he might turn to would be the remarks of the sentencing judge. That is because inherent in the sentencing process are assessments of the likelihood of reoffending. The Minister’s reasons disclose he was in other respects prepared to rely on the sentencing judge’s remarks about this applicant. As the applicant submitted, both the decision not to impose a parole period and the suspension of the majority of the sentences, together with the remarks made, make it clear the sentencing judge did not place the risk of the applicant of reoffending as very high. That is not to say the sentencing judge’s assessment had any necessary consequences for the view the Minister might ultimately form — but the absence of any references to these issues in the Minister’s reasons supports the proposition that he did not examine the likelihood of reoffending at all.

(My emphasis)

Disposition

21    The issue for determination is whether the Minister’s decision as to whether there was “another reason why the original decision should be revoked” for the purposes of s 501CA(4)(b)(ii) of the Act was infected with jurisdictional error. The applicable legislative regime, for that purpose, was summarised by Robertson, Moshinsky and Bromwich JJ in Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 at [19] as follows:

As summarised by the primary judge, in broad terms, the relevant statutory scheme was as follows. Under s 501(3A), the Minister had a duty to cancel a visa if the Minister was satisfied that the visa holder did not pass the character test prescribed in s 501(6) because, among other things, the person had been sentenced to and was serving a term of imprisonment of twelve months or more on a full-time basis (see ss 501(6)(a) and (7)(c)). Natural justice requirements did not apply to the visa cancellation decision. Thus, in this particular case, the respondent was not given an opportunity to be heard prior to his [Resolution of Status] visa being cancelled on 21 December 2015. When the Minister cancelled a visa under s 501(3A), the Minister had to give the affected person notice of the visa cancellation decision and invite the person to make representations to the Minister about possible revocation of the visa cancellation decision (s 501CA(3)). Under s 501CA(4), the Minister had a discretion to revoke the visa cancellation decision if representations were made and the Minister was satisfied either that: the person passes the character test prescribed in s 501(6); or “there is another reason why the [visa cancellation] decision should be revoked” (501CA(4)(b)(ii)). If the Minister revoked the visa cancellation decision, that original decision was taken not to have been made (s 501CA(5)).

22    Based upon an examination of the language of s 501CA(4)(b)(ii) in its statutory context, the subparagraph confers upon the Minister a dispensing or relieving power in the broadest of terms. It reposes in the Minister the duty to determine if “there is another reason why the original decision should be revoked”. This is a power of statutory clemency. Traditionally, courts of law have declined to review judicially what is sometimes called the prerogative of mercy: Horwitz v Connor (1908) 6 CLR 38; Von Einem v Griffin (1998) 72 SASR 110; Yasmin v Attorney General of the Commonwealth (2015) 236 FCR 169 at [83].

23    In that respect, the essential nature of the power here is different to the power in s 501(2) of the Act which confers, not a dispensing power, but a power positively to cancel a visa. This has been recognised by the Full Court of this Court. In BSJ16 v Minister for Immigration and Border Protection (2017) 252 FCR 82, the Court said at [28]-[30]:

The task of the Minister required by s 501(2) of the Migration Act, which was examined by the Full Court in Moana [(2015) 230 FCR 367], is not the same as that imposed on the Minister by s 501CA.

Section 501(2) requires the Minister to assess his or her level of satisfaction as to whether the person has passed the character test as defined by s 501(6). Section 501(6) is relatively prescriptive, including s 501(6)(d) which requires the Minister to consider whether, in the event the relevant person is allowed to enter or to remain in Australia, there is a risk that the person would, inter alia, engage in further criminal activity or represent a danger to the Australian community (or to a segment of that community).

On the other hand s 501CA, in particular s 501CA(4), requires the Minister to engage in a different decision-making process. Pursuant to s 501CA(4) the Minister may revoke a visa cancellation decision if the person makes representations and the Minister is satisfied either that the person satisfies the character test or that there is another reason why the original decision should be revoked. The factors to which the Minister can have regard in determining whether or not to revoke a visa cancellation decision are unconfined by the statute, subject to the principle that they must be those which can be implied from the subject-matter, scope and purpose of the legislation: Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.

That is not to deny the relevance of the jurisprudence concerning s 501(2) of the Act. The decision at first instance in BSJ16 (see [25] below), illustrates that principle: BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181.

24    Two further points should be observed. First, the provision contains a non-exhaustive obligation of procedural fairness. Section 501CA(3) requires the affected applicant to be invited to make submissions. In Picard v Minister for Immigration and Border Protection [2015] FCA 1430, Tracey J said at [42]:

It does not follow that, in all cases, the Minister will accord procedural fairness simply by complying with the requirements of s 501CA(3). Once the invitation to make representations is extended to a visa holder it falls to the visa holder, if he or she wishes to do so, to provide information and submissions to the Minister in an effort to persuade the Minister that a revocation decision should be made. Those representations will be made in the knowledge that the Minister is likely to be guided by some or all of the considerations referred to in [Ministerial] Direction 65. The applicant will, therefore, be in a position to provide the Minister with information relating to those considerations, including information which might seek to anticipate and allay concerns which the Minister might harbour relating to the applicant’s circumstances and conduct. If, in making representations, the applicant provides information to the Minister, relating to his or her personal circumstances, and that information is critical and relevant to the applicant’s case the Minister is bound to consider it. It will be a matter for the Minister to weigh such matters against other relevant considerations, including those mentioned in Direction 65. It will not, normally, be necessary for the Minister to afford a further opportunity to the applicant to deal with particular issues. If, however, the Minister becomes aware of information which is personal to the applicant and which might lead the Minister to disbelieve some critical information supplied by the applicant, it may be necessary for the Minister to expose that information to the applicant and give the applicant the opportunity of responding to it before making a decision.

25    Secondly, the Minister here considered the issue of harm to the Australian community, as he was required to. In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, Moshinsky J said at [68]:

By parity of reasoning with the cases on s 501(2) discussed above, the Minister in exercising the power conferred by s 501CA(4) has no duty to evaluate the risk of harm to the Australian community “in any particular way or to ascribe any particular characterisation to the quality of the risk”: see Brown [(2015) 235 FCR 88] at [41], citing Moana [(2015) 230 FCR 367] at [71] and Ayoub [(2015) 231 FCR 513] at [44]. In other words, there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational (in the sense used in cases such as Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1).

See also Stojanovski v Assistant Minister for Immigration and Border Protection [2017] FCA 609 at [41].

26    As already mentioned, the applicant’s case eschewed any reliance on grounds relating to irrationality or illogicality or legal unreasonableness. Instead, because the Minister failed to consult or make enquiries beyond an examination of the Certificate, it was contended that the Minister had either failed to complete his task or had made findings which were not open to him.

27    I will address the evidentiary basis for the Minister’s decision first. Weinberg J said in Australian Retailers Association and Others v Reserve Bank of Australia (2005) 148 FCR 446 at [575]:

Under s 39B of the Judiciary Act (which reflects the common law), the “no evidence” ground requires that there be simply no evidence, or other material, to justify the findings of fact made. Aronson, M, Dyer, B and Groves, M, Judicial Review of Administrative Action (3rd ed, Lawbook Co, 2004)] suggests, at 239, that “no evidence” means “not a skerrick of evidence”. If there is some evidence, no matter how unconvincing, and no matter how overwhelming the evidence to the contrary may be, the traditional approach is to treat the complaint as factual, and not legal. According to Mason CJ in Bond [(1990) 170 CLR 321], at 356:

So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

28    In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ said at 355 - 356:

The question whether there is any evidence of a particular fact is a question of law: McPhee v. S. Bennett Ltd. [(1934) 52 WN(N.S.W.) 8, at p. 9]; Australian Gas Light Co. v. Valuer-General [(1940) 40 SR(NSW) 126, at pp. 137-138]. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light [at pp 137-138]; Hope v. Bathurst City Council [(1980) 144 CLR 1, at pp 8-9]. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v. Broken Hill South Ltd. [(1941) 65 CLR 150, at pp 155, 157, 160]. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v. Maryborough Mining Warden [(1975) 132 CLR 473, at pp 481, 483].

But it is said that “[t]here is no error of law simply in making a wrong finding of fact”: Waterford v. The Commonwealth [(1987) 163 CLR 54 at p. 77], per Brennan J. Similarly, Menzies J. observed in Reg. v. The District Court; Ex parte White [(1966) 116 CLR 644, at p. 654]:

“Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law.”

Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

See also Federal Commissioner of Taxation v Pham (2013) 134 ALD 534.

29    In determining whether a finding is supported by “some basis” or a “skerrick” of evidence, one should ask whether evidence existed which could rationally affect the assessment of the probability of the existence of a fact (c.f. s 55 of the Evidence Act 1995 (Cth)) or a future fact. If such evidence exists, it is for the decision maker, and not this Court, to determine its probative weight and to decide whether it does, or does not, support a given finding.

30    I do not think it can be said here that there was not “a skerrick of evidence” before the Minister justifying the finding made about the seriousness of the crimes committed. The example of the offence relied upon by the applicant, supra, doubtless well illustrates his complaint. But the Certificate listed other offences which, in my view, provided a basis to support this finding. These included those listed as “Threat to Inflict Serious Injury”; “Endanger Serious Injury”; “Contravene A Conduct Condition Of Bail Harass Witness (2 Charges)”; “Intentionally Cause Injury (2 Charges)”; “Make Threat To Kill”; “Unlawful Assault”; “Breach Of Suspended Sentence Imposed on 11 May 2011”; and “False Imprisonment”. These descriptions of the offences committed (including one involving breach of a suspended sentence), gave the Minister an evidentiary basis for his finding about the seriousness of the offences committed.

31    However, after much consideration, I am not satisfied that there existed a “skerrick” of evidence, or “some basis” for the findings reached that there existed a “likelihood” that the applicant would re-offend and, accordingly, that he represented an “unacceptable risk of harm to the Australian community”. Looking at the applicant’s convictions for crimes of violence over a five year period, the Certificate records that he was convicted on two occasions of assault and of two charges of intentionally causing injury. He was also convicted of false imprisonment. Whether these violent acts formed a pattern of behaviour is unknown. Whether they constituted similar acts of violence involving the same or similar victims is unknown. Whether they revealed a trend of increasing or decreasing degrees of violence is unknown. Whether they were the product of, or affected by, the taking of drugs is unknown. Why the applicant at the age of 46 commenced for the first time committing crimes is unknown; at best we know that it started with the possession of prohibited drugs. What mitigating circumstances existed, if any, relating to why the applicant’s life changed, and in relation to each act of violence, is unknown. Upon investigation it may be found that no mitigating circumstances existed and that the Minister’s findings were well justified. But absent a form of investigation into the quality and circumstances of the convictions, the bare recital of their historical existence in the Certificate and the resultant sentence, whether considered individually or in aggregate, did not constitute “some basis” for a prediction about future behaviour. This material was simply too vague to ground rationally findings about the applicant’s future behaviour.

32    For similar reasons, I am not satisfied that the convictions which appear to record an indifference to the rule of law, provide a basis for the finding concerning the “likelihood” that the applicant will re-offend in a way that creates a risk of harm to the Australian community. The applicant was convicted in 2011 of failing to answer bail, in 2012 of being in breach of a suspended sentence and in 2015 of persistent contravention of a family violence order. The applicant also ignored the warning from the Department. These are all very serious matters. But we know nothing about the circumstances leading to each conviction, and as to why the warning was ignored. There may, or may not have been, mitigating circumstances which could have rationally affected the Minister’s decision about the likelihood of harm. Again, the bare recital of conviction and sentence in and of itself, and whether taken individually or cumulatively with the other offences, did not rationally support or not support, the Minister’s finding about the risk of harm.

33    I have reached a similar conclusion concerning the offences relating to the possession and tracking of prohibited drugs.

34    It is true that it was open to the applicant to have produced further information concerning the circumstances of his convictions. After all, the applicant was the best person to know of the mitigating circumstances (if any) associated with the commission of his crimes. As the Full Court of this Court observed in Wozniak v Minister for Immigration and Border Protection [2017] FCAFC 148 at [28], in a case in which it was contended that the Minister had erred in exercising his power under s 501CA(4)(b)(ii) in failing to call for a certain pre-sentencing report (“PSR”):

If the applicant considered that the PSR was important to his application for revocation in some way, it was a matter for him to say so. He was constructively on notice that the Department either did not have a copy of the PSR, or at least did not intend to have regard to it, by the fact that the transcript was sent and the PSR was not, and by the fact that no comment was sought in relation to the PSR. Procedural fairness required no more. There was no practical injustice in nothing being done to obtain the PSR.

35    However, it was the Minister who made the finding about the risk of re-offending and of harm to the Australian community. It was incumbent upon him to ensure that his findings were supported by evidence, especially having regard to the strong factors advanced by the Minister which weighed against deportation. I have found this to be an extreme and rare case. In my view, for the foregoing reasons, and with respect, the Minister’s decision must be set aside and the case re-examined.

36    It will be a matter for the Minister to make such enquires as might produce evidence which addresses the likelihood of re-offending and of resultant harm to the community. He might apply to have access to tape recordings of the sentencing remarks made by the sitting magistrates, if these are available. He might be able to ask the applicant himself to obtain these recordings or further information about the circumstances of each offence. Inquiries might be made of the police, and of those who prosecuted the applicant. This is not intended to be an exhaustive list. Following the making of these inquiries, it will then be for the Minister to evaluate and assess the probability of re-offending and the quality of the risk the community may face. That probability and quality will then need to be balanced against the facts against deportation already identified by the Minister. It will be for the Minister to judge how these factors are to be balanced against each other.

37    For these reasons, it is unnecessary for me to consider the applicant’s other ground of review.

38    It is finally also unnecessary for me to consider the application of North J’s reasons in Cotterill; the measure of legal unreasonableness found by his Honour to exist in that case turned upon its particular facts. Moreover, that case concerned s 501(2) and not s 501CA(4). For similar reasons, the observations of Mortimer J in Tanielu are not determinative here.

39    This application should be allowed with costs.

Associate:

Dated:    8 August 2018