FEDERAL COURT OF AUSTRALIA

Santos v Assistant Minister for Home Affairs [2018] FCA 1296

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the costs of the first respondent, of and incidental to 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

(Revised From Transcript)

LOGAN J:

1    The applicant, Mr Jokim (Joe) Vincent Santos is a New Zealand citizen. On 2 June 2016, at about 7.45 pm, in company with his younger nephew, Mr Santos attacked a taxi driver and damaged the taxi which had been driven by that driver. The incident involved repeated kicking of the taxi door some 10 to 12 times, spitting into the face of the driver and culminated in a sustained attack by Mr Santos and his nephew on the driver as to which the sentencing judge stated:

[It] can only be described as gratuitous, prolonged, cowardly and brutal.

As part of the aggression towards the taxi driver, and again to adopt the sentencing judge’s description:

Ugly, racist remarks were hurled at him.

2    On 19 April 2017, after a timely plea of guilty, Mr Santos was convicted in the Queensland District Court of the following offences, and sentenced as follows:

(a)    grievous bodily harm in a public place while adversely affected by intoxicating substance, sentence: imprisonment for three years, community service order for 12 months to perform 40 hours;

(b)    common assault in a public place while adversely affected by intoxicating substance, sentence: imprisonment for three months, community service order for 12 months to perform 40 hours;

(c)    wilful damage of property, sentence: imprisonment for one month.

The sentencing judge fixed a parole release date of 19 April 2018.

3    In respect of the most serious of these offences, the infliction of grievous bodily harm in a public place while adversely affected by an intoxicating substance, Mr Santos, though a party to the offence, was not the principal offender. That was his nephew. He was the principal offender in respect of the other two offences.

4    On 26 June 2017, Mr Santos’ visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister for Home Affairs. The Assistant Minister (Minister) in that Department is the present respondent. The cancellation decision was made because the delegate was satisfied that Mr Santos did not pass the character test. That was on the basis of a view that the effect of Mr Santos being sentenced to a term of imprisonment for three years meant that he had in terms of s 501(6A), read with s 501(7C), a substantial criminal record. The sentence imposed for that offence provided a foundation for that satisfaction. No challenge is made in the present proceedings to the Minister’s conclusion that Mr Santos did not pass the character test on that basis.

5    The effect of the cancellation of Mr Santos’ visa was that he became liable to immigration detention and to deportation. In the circumstances of the present case, given his New Zealand citizenship, he is liable to deportation to New Zealand. Without more, one might regard that deportation as an unremarkable sequel to a violent crime by a non-citizen. But there is more.

6    Section 501CA(4) of the Act provides that the Minister may revoke the original cancellation decision made under s 501(3A) if:

(a)    the person makes representations in accordance with the invitation given under section 501CA(3)(b); and

(b)    the Minister is satisfied:

(i)    that the person passes the character test; or

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

7    The required invitation was given to Mr Santos. He made, in response, a representation to the Minister. As the Minister came accurately to summarise in his Statement of Reasons, that representation disclosed the following.

8    Mr Santos came lawfully to Australia from New Zealand at age two. He has grown up, been educated and worked in Australia ever since. He has two Australian citizen, minor children, each of whom resides in Australia. One is a son aged three years, the other a daughter (a baby aged four months at the time when the Minister made his decision). Mr Santos’ partner, the mother of the two children mentioned, also an Australian, has taken a lease on a house. That was because of an intention on her part that upon Mr Santos’ release from prison, they would reside there with their children as a family. That was also Mr Santos’ intention. Mr Santos provides financial support to his partner, their children and also to his mother. Mr Santos has a close bond with his nieces and nephews who are minors, as well as the children of his cousins.

9    Mr Santos completed all of his education in Australia. He has worked here since leaving school in 2007. His former employer has offered him a job upon his release from prison. Mr Santos has a close association with his local football club. He has also participated in youth fund raising for his local parish church in Brisbane. Mr Santos has a good support network of family and friends. His family have stated that they will ensure that he gets the professional help needed in respect of his integration back into his life outside prison with his family.

10    Since the death of his father in 2011, Mr Santos, as the only son, has taken on responsibilities within his family, in particular supporting his mother both financially and emotionally. He is the only male role model for his sisters and for their children. Mr Santos has no personal connection to New Zealand. He has no family or friends residing there.

11    In the result, by a decision made on 2 May 2018, the Minister decided not to exercise his discretion to revoke the cancellation decision. It is that decision which is the subject of the present judicial review proceedings. The following grounds of review were pressed:

2.    The Respondent fell into jurisdictional error by failing to take into account relevant considerations namely that Mr Santos:

i.    Did not instigate the violent offences which were the subject of his criminal convictions;

ii.    That the risk to the Australian community of Mr Santos reoffending in a similar fashion is mitigated by the fact that Mr Santos is subject to a two year parole period and a twelve month Community Service Order period from the date of his release from incarceration; and

iii.    The criminal convictions were isolated incidents of violence, and that Mr Santos had no prior history of violent offending.

3.    The Respondent fell into jurisdictional error by making a decision that was irrational/illogical and unreasonable having regard to:

i.    The role of the Applicant as opposed to his nephew in the offending;

ii.    The misconstruction and mischaracterisation of the risk posed by the Applicant;

iii.    That the Applicant’s criminal convictions were isolated incidents of violence, and that Mr Santos had no prior history of violent offending; and

iv.    The misdescription and mischaracterisation of the risk of Mr Santos engaging in alcohol abuse in the future in relation to risk of reoffending.

What is not raised as a ground of review is whether in its outcome, the Minister’s decision was unreasonable, such that it was for this reason alone invalid.

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

13    As to the first, what is or is not a relevant consideration in the jurisdictional error sense of a consideration which must be taken into account is for the purposes of a statutory discretionary power determined by what the statute concerned, either expressly or by necessary implication, makes relevant: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend Ltd). Thus, what are described as relevant considerations in Ground 2 are not in themselves relevant considerations. The Act does not expressly provide that any of these must be considered, nor does it do so by necessary implication. What it does provide expressly is that the Minister must consider a representation if made in response to the invitation given. That representation is a relevant consideration.

14    As to representations so made, I respectfully agree with observations made earlier this year by Griffiths J in Hands v Minister for Immigration and Border Protection [2018] FCA 662 at [31]:

31.    Eighthly, it is important to appreciate that the alleged failure to give real consideration raised by ground 1 relates to the consideration of representations made by or on behalf of Mr Hands in support of his revocation request. In Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 (Goundar), Robertson J stated at [56] that, while his Honour accepted that under s 501CA(4) representations as a whole constituted a mandatory relevant consideration, he did not accept that “any particular statement in the representations should be so characterised”. The correctness of those observations were expressly left open by the Full Court in Parker at [16]. In my respectful view, caution needs to be exercised in applying the relevant principles to a particular case involving a consideration of a representation made under s 501CA(4)(a). There is no requirement that a decision-maker address every single word raised in such representations, nor refer in his or her reasons for decision to every piece of evidence and every contention made by an applicant, especially where such evidence or contention is not relevant to the statutory criteria (see Carrascalao at [45]). Rather, the legal obligation is to consider in the relevant legal sense the discrete and relevant claims raised in those representations. The claims need to be clearly articulated. I respectfully agree with the following observations of Flick J’s in Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [42].

… In circumstances where “representations” made pursuant to s 501CA clearly articulate a series of discrete matters, there may be circumstances in which a conclusion would be open that the Minister has failed to properly take into account the “representations” if he addresses one or other – but not all – of the discrete matters raised for his consideration. No parsing and analysing of a submission, however, should be countenanced which would permit a Ministerial decision to be impugned by reason of a failure to make express reference to some peripheral matter which may be found within a submission but which cannot sensibly be characterised as the thrust of the claims being made or a claim that has to be separately addressed.…  

15    Part of what is said to be a relevant consideration in Ground 2, is the subject of risk of reoffending or rather, risk to the Australian community, if the person remains in Australia. Earlier this year, in Ogawa v Minister for Immigration and Border Protection [2018] FCA 62 (Ogawa), I made reference, as have other judges, to apparently differing views expressed in the Full Court as to whether risk to the community was or was not a relevant consideration, for the purposes of a decision either to cancel a visa or revoke a cancellation decision. The Full Court cases concerned are Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367 (Moana), and Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 (Huynh). As in Ogawa, it is not necessary to reach any concluded view in the present case as to whether risk was or was not a relevant consideration. That is because contrary to the pleaded ground of review, the Minister expressly, by his own choice, considered that subject. For that reason, I do no more than adopt the discussion found in Ogawa at [37] – [41] of Moana and Huynh and other related authorities.

16    The Minister’s reasons disclose that, in the context of his consideration of the representation made by Mr Santos, he expressly addressed each of the pleaded so-called relevant considerations. In so doing, the Minister, as was open on the material before him, expressly distinguished between Mr Santos’ role as principal offender in respect of the common assault and lawful damage offences, and his role as a party but not principal offender, in respect of the grievous bodily harm offence. He also expressly noted and addressed the terms of Mr Santos’ sentence which included his being subject to a parole period of two years and a 12-month community service order.

17    The Minister likewise noted and expressly addressed that the offences committed in 2016 did not form part of a prior history of violent offending. The Minister took into account such earlier criminal history as Mr Santos had.

18    To read the reasons as a whole, as one must, without any eye of error, as one also must (see Wu Shan Liang v Minister for Immigration & Ethnic Affairs (1996) 185 CLR 259), is to read reasons which evidence a very close engagement indeed with the representation made by Mr Santos and with the letters of support and other documents proffered with and as part of that representation. The Minister’s reasons, unsurprisingly, have been shaped by the representations made. What follows from the foregoing is that there is no substance in the allegation of a jurisdictional error grounded in the so-called relevant considerations not having been taken into account.

19    I turn then to the second ground review, Ground 3. Last week, in Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30 (SZVFW), Kiefel CJ observed at [10]:

In the joint judgment in Minister for Immigration and Citizenship v Li, it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That maybe so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational.

In that same case at [82], in their joint judgment, Nettle and Gordon JJ stated:

Nor is the absence of statutory power limited to a decision which may be described as “unreasonable” or to what might be described as an irrational if not bizarre decision that is so unreasonable that no reasonable person could have arrived at it. A conclusion of legal unreasonableness may be outcome-focused where, for instance, there is no evident and intelligible justification for the decision. As Gageler J explained in Minister for Immigration and Citizenship v Li, review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process”, but also “with whether the decision falls within a range of possible acceptable outcomes which are defensible in respect of the facts and law”.

20    As I have mentioned, the challenge made to the Minister’s decision is not outcome-focused. Rather, it was put that it was attended with irrationality. Particular reference in this regard was made to para 97 of the Minister’s reasons, acknowledging the need, earlier mentioned, to read reasons as a whole. It is desirable to set out that paragraph and also paras 98 and 106 of the Minister’s reasons:

97.    I find also that although Mr SANTOS abstained from alcohol use prior to his 2017 convictions, this was whilst he was on conditional liberty. Mr SANTOS’ rehabilitative efforts are otherwise limited and he has not provided evidence of having attended or completed relevant courses or counselling in order to specifically address his alcohol abuse issues linked to his past violent conduct. Further his rehabilitative efforts have not been tested in the community in an unsupervised capacity. I accordingly find that there remains a risk of him again engaging in alcohol abuse thereby increasing the likelihood of him reoffending.

98.    Overall, I find that there is a likelihood that Mr SANTOS will reoffend, albeit a low likelihood.

…

106.    Further, I find that the Australian community could be exposed to harm should Mr SANTOS reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr SANTOS.

21    It was put that the reasoning evident in para 97 lacked logicality. An analogy was sought to be drawn between the reasoning evident there and that which was found to have invalidated a decision of the Queensland Parole Board in Queensland Parole Board v Moore [2012] 2 Qd R 294 (Moore). In particular, reference was made on behalf of Mr Santos to the observations of Holmes J, as her Honour then was, with which McMurdo P and Mullins J agreed at [17]:

17.    The objects of the Corrective Services Act 2006 include:

“community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders.”

Considering the function of parole in that context, it cannot be accepted that the Board is not obliged, in considering risk, to look beyond the time at which it is dealing with a parole application. If community safety is to be achieved by supervision and rehabilitation, it is necessary to consider an applicant’s likely progress over the potential parole period, rather than confining considerations to the present or the immediate future. Dr Kar had advised that it would be preferable for the respondent to be gradually re-integrated back into the community; the Parole Board Assessment Report had made the point that the benefits of supervision would diminish as the length of the prospective parole period was reduced. It was accordingly, both relevant and necessary for the Board to take into account and weigh the relative risks of discharging the respondent at or towards the end of his sentence and of giving him earlier supervised release on parole. It was perfectly open to the Board to decide that the time was not yet right to undertake the latter exercise, but the respondent had squarely raised the issue in his submissions; it was relevant; and the mere allusion to Dr Kar’s report did not amount to taking it into account.

22    In particular, it was put that, though the Minister had made reference to rehabilitative efforts in para 97, his statement that Mr Santos’:

… rehabilitative efforts have not been tested in the community in an unsupervised capacity –

and that:

… there remains a risk of him engaging in alcohol abuse thereby increasing the likelihood of him reoffending.

this exhibited just the kind of error described by Holmes J in para 17.

23    The repost to that on the part of the Minister was, in my view, a complete answer. The purpose of the revocation power conferred by the Act is quite different to the object of the Corrective Services Act 2006 (Qld) identified in the passage from Moore quoted. There was no irrationality or illogicality, in my view, in noting, as was the fact at the time, that there had not been any testing in the community in an unsupervised capacity of Mr Santos’ rehabilitative efforts. That was but one fact in a matrix of facts addressed by the Minister in weighing up the subject of risk and, in turn, balancing that against other considerations raised in the body of the representation and otherwise in the material before him in relation to whether the visa cancellation decision should be revoked.

24    There is, in my view, a logical connection, in terms of a chain of reasoning between the Minister’s noting of rehabilitative efforts not tested in the community in an unsupervised capacity and his ultimate conclusion that there remained a risk, albeit a low one, of reoffending. Part of the Minister’s reasoning, as his Statement of Reasons discloses, also drew upon an earlier history of over-indulgence in alcohol and to a past habit acknowledged in the representation made to him by Mr Santos. The Minister also noted that Mr Santos had abstained from alcohol whilst subject to release on bail prior to his sentencing in the District Court.

25    It is very important to recall in cases like the present that there exists and must be conceded to the Minister, what has sometimes been termed “a zone of discretion” in deciding whether or not to revoke a cancellation decision. Why that is so, was the subject of a reminder by Edelman J in SZVFW at [127]:

Speaking in the context of the adjudication of questions of construction of legislation, Aronson, Groves and Weeks observe that “[o]ne of the assumptions underlying Marshall CJ’s judgment in Marbury v Madison remains to this day, namely, that to every question of law, there can be only one right answer”. On judicial review of, or appeal from, a decision concerning the construction of legislation, a contract, a will, or a trust, no latitude is given to a primary decision maker even where the primary decision was one about which opinions might reasonably differ. “As to construction, there is always one and only one true meaning to be given to fully expressed words.”

See also as to Australian authority, the enduringly influential observations made by Sir Gerard Brennan in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 to 36.

26    The Minister’s reasons, on the material before him, disclose no error as to the role played by Mr Santos in each of the offences concerned, nor do they misconstrue or mischaracterise the risk posed by Mr Santos. Rather the Minister has addressed expressly the risk to the community if Mr Santos were to remain in Australia because the visa cancellation decision was revoked. He has also expressly taken into account Mr Santos’ criminal history, including the absence in that prior history of violent offending.

27    Further, the Minister has not misdescribed or mischaracterised the risk of Mr Santos engaging in alcohol abuse in the future in relation to the risk of reoffending. All that he has done is to note a past habit, acknowledged by Mr Santos in his representation, of alcohol abuse, and further to note an absence at present not only of unsupervised rehabilitation efforts, but also an absence of particular treatment or counselling, as at the time of his decision, to address that habit earlier manifested. There is nothing illogical or irrational about the reasoning process employed by the Minister.

28    There is no doubt that the present is a particularly hard case. But, as I observed at the outset, what is not raised as a ground of review is whether the outcome was itself unreasonable. It was not necessary in the High Court in SZVFW, in the circumstances of that case, to address in any detail outcome-based unreasonableness as a ground of jurisdictional error and, in particular, whether notions of proportionality, a failure, for example, to give weight to a relevant factor of great importance, as described by Sir Anthony Mason in Peko-Wallsend Ltd at [41], had any particular place and, if so, what, in relation to the content of that jurisdictional error ground.

29    It only comes to this. This is one of those decisions, the making of which is consigned by Parliament to the Minister, not to the courts. Within the bounds of legality, the making of discretionary value judgments is for the Minister, not for the judiciary. For those decisions, within the bounds of legality, the Minister is answerable to the Parliament, not to the judiciary. Neither of the grounds of review pressed has merit, and that is so notwithstanding that everything which might be put in respect of them was advanced on Mr Santos’ behalf, both in written submissions and orally.

30    It follows from the foregoing that the application must be dismissed.

Associate:

Dated:    24 August 2018