FEDERAL COURT OF AUSTRALIA

Ali v Minister for Home Affairs [2018] FCA 1693

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be granted an extension of time to rely upon ground 4 of the amended originating application dated and filed 25 September 2018.

2.    The applicant be refused an extension of time to rely upon grounds 1, 2, 3, 5, 6 and 7 of the amended originating application.

3.    The amended originating application be dismissed.

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

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

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    The applicant, Mr Shaheed (Alex) Ali, challenges by way of judicial review the decision of the respondent, the Minister for Home Affairs, not to revoke the mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return visa, granted in 2002, which enabled him to live and work in Australia.

2    Mr Ali is a citizen of Fiji. He is now 59 years of age, having come to Australia when he was 29 years of age in 1988. He has resided in Australia since 26 March 1988 and has only made two short trips overseas since then, going back to Fiji in 2002 and 2005 after the grant of his visa. He maintained steady employment following his arrival in Australia, including for a period of 22 years with one employer, with that employer being willing to reemploy him apparently in full knowledge of the matters that follow.

Conviction leading to visa cancellation

3    On 26 December 2011, Mr Ali sexually assaulted a seven-year-old girl, the granddaughter of a neighbour, in the lounge room of her home by way of digital penetration over about 10 minutes, causing pain and bleeding. Mr Ali faced three jury trials in the District Court of New South Wales on a charge of having sexual intercourse with a person under the age of 10 years, contrary to s 66A(1) of the Crimes Act 1900 (NSW). It is not apparent why three trials were necessary. On his third trial, Mr Ali was found guilty on 5 June 2015. On 2 October 2015, he was convicted and sentenced to a four-year term of imprisonment with a non-parole period of two years. The maximum penalty at that time was 25 years’ imprisonment, although it has since been increased to life imprisonment.

4    Mr Ali’s sentence was backdated to 5 May 2015 to account for a month of pre-trial custody, and being remanded in custody on 5 June 2015 following the jury’s guilty verdict.

5    On 3 February 2017, Mr Ali was notified of a decision made by a delegate of the Minister to cancel his visa, being a mandatory cancellation by reason of his conviction and sentence. By an application dated 28 February 2017 and received by email on 2 March 2017, he applied to have that cancellation revoked.

6    He was taken into immigration detention upon his release from prison on 4 May 2017, where he remains.

7    On 15 February 2018, the Minister decided not to revoke his delegate’s mandatory visa cancellation decision, adopting written reasons prepared for his signature. In making that decision, the Minister had before him a departmental submission with attachments, including submissions and other material relied upon by Mr Ali in support of revocation of the cancellation decision.

Grounds of review and extension of time

8    On 29 May 2018, Mr Ali commenced this proceeding by way of an originating application dated 23 May 2018 and filed on 28 May 2018. On 25 September 2018, an amended originating application was filed containing nine grounds of review. Ground 8 was abandoned in the written submissions for Mr Ali prepared by his counsel, as confirmed at the hearing. Ground 9 was also abandoned at the hearing. The remaining seven grounds are dealt with in turn.

9    Because this proceeding was not commenced within 35 days of the Minister’s decision, as required by s 477A(1) of the Migration Act 1958 (Cth), but, rather, was commenced just over two months late, Mr Ali requires an extension of time. An explanation was provided by an affidavit from one of his sisters, which the Minister concedes is plausible but maintains is inadequate. I consider the explanation sufficient in all the circumstances. No prejudice to the respondent in granting the extension of time is identified, although that is not necessary in order to refuse such an extension of time.

10    The principal reason for granting or refusing an extension of time in this case is the apparent merit, or lack of merit, of the grounds relied upon. I recently addressed that issue in the context of a revocation case in Afu v Minister for Home Affairs [2018] FCA 1311 at [3]:

The merit threshold for the grant of an extension of time is not especially onerous. It will seldom be in the interests of justice to grant an extension of time where there is little or no prospect of success, not least because of the additional resources that may need to be expended. However, unless the grounds are hopeless on an impressionistic reading of them that is without the benefit of detailed argument, such that it can be confidently concluded that the grounds must fail, the better approach may be to grant the extension of time and then consider the grounds properly and with the benefit of full argument: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62] and [66]. In this case, an impressionistic approach to the proposed grounds of review does not warrant the epithet of “hopeless”. The Court has had the benefit of full argument on those grounds, such that there is no question of any additional resources being expended by the grant of an extension of time. It follows that the appropriate course is to grant the extension of time and consider the grounds advanced in full.

11    I reach the same conclusion in this case as in Afu as to one of the seven grounds of review that are pressed. For the reasons set out below, Mr Ali should be granted an extension of time in respect of ground 4 of his amended originating application, but refused an extension of time in respect of grounds 1, 2, 3, 5, 6 and 7, noting again that grounds 8 and 9 were not pressed and therefore that no extension of time was sought in respect of either.

Overview of the Minister’s reasons

12    Before turning to the grounds of review, it is convenient to provide an overview of the material that was before the Minister, and his reasons for deciding not to revoke the visa cancellation. This frames the issues raised by the grounds of review.

13    The Minister had before him a departmental submission dated 2 January 2018, to which were attached:

(1)    a national police certificate recording Mr Ali’s sexual intercourse conviction and a prior offence of being armed with intent to commit an indictable offence, for which he received no conviction but an 18-month good behaviour bond;

(2)    sentencing remarks in the District Court of New South Wales dated 2 October 2015;

(3)    Mr Ali’s revocation request and personal details form;

(4)    a submission from Mr Ali’s migration agent, together with statutory declarations from Mr Ali’s three sisters, a brother-in-law, a former brother-in-law and a friend;

(5)    a letter from the prison authorities concerned with sex offender programs, indicating that Mr Ali did not require sex-offender-specific treatment;

(6)    a letter from Mr Ali relevantly indicating that his former employer’s offer for employment remained open and that he promised to immediately start working harder, paying taxes and contributing to Australia, as well as asserting that he could not survive if he were sent back to Fiji without any job, shelter, central medication, everyday living essentials and with his mental health condition;

(7)    a statutory declaration from his former employer indicating that he still had a job waiting for him if he were to be released and allowed to remain in Australia, which would give him the opportunity to pay taxes and once again contribute to the Australian community;

(8)    a short progress note from his treating doctor dated 2 April 2015;

(9)    his movement records indicating his two visits to Fiji in 2002 and 2005;

(10)    the notice of the cancellation of his visa; and

(11)    the Minister's direction under s 499 of the Migration Act (Direction 75), requiring that any refugee and complementary protection claims be addressed first.

14    The departmental submission before the Minister outlined:

(1)    the operation of s 501CA of the Migration Act and how that had been applied to Mr Ali;

(2)    Mr Ali’s offending history;

(3)    a summary of the representations made by Mr Ali’s migration agent, including by reference to the best interests of minor children (being the young children of Mr Ali’s nieces and nephews);

(4)    international non-refoulement obligations;

(5)    expectations of the Australian community and the strength, nature and duration of Mr Ali’s ties to Australia (including his family composition, family ties, community contribution and community ties);

(6)    the impediments to his return to Fiji;

(7)    Mr Ali’s rehabilitation;

(8)    mitigating circumstances; and

(9)    the remarks on sentence, with a particular focus on the impact on the victim, Mr Ali’s lack of remorse and inability to acknowledge his guilt, his positive work history, his drinking problems and his low risk of reoffending, falling short of complete rehabilitation.

15    As noted above, the Minister made his decision on 15 February 2018. The Minister was not satisfied that Mr Ali passed the character test defined by s 501 of the Migration Act. Nor was the Minister satisfied that there was another reason why the original decision should be revoked, such that the power in s 501CA(4) of the Migration Act to revoke the original decision was found not to be enlivened. Mr Ali’s visa therefore remained cancelled.

16    The Minister's decision attached a statement of the reasons advanced on behalf of Mr Ali as to why the original cancellation decision should be revoked, including that:

-    his sisters, who are all Australian citizens, will be devastated should he be removed to Fiji. They have lost three other family members in tragic circumstances and they want to stay together in Australia.

-    the likelihood of him re-offending is zero; he is not a risk to anyone.

-    [h]e maintains he is innocent, but is also ‘ashamed’ and will not put himself in the same situation again.

-    he has been working hard for the past 22 years paying taxes. He has been a contributing member of the community in Australia.

-    he has not returned to Fiji for 29 years and has no support there; his physical and mental health will be affected if he has to live there.

17    The Minister’s reasons then addressed a range of topics under separate headings. It is only necessary to canvas those topics that are in issue in this proceeding.

Expectations of the Australian community

18    This topic is raised in relation to ground 1 of the amended originating application, and collaterally in relation to ground 2 (due to what was not addressed). The Minister’s reasons relevantly stated the following:

16.     I have noted Mr Nikjoo’s submission that the Australian community would expect Mr ALI’s visa to be reinstated as he has been a hard working member of the community for 27 years without any convictions.

17.     I find that the Australian community would expect non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the original decision to cancel the visa of such a person. Mr ALI has breached this trust as he has been convicted of a very serious sexual offence against a child.

18.     Given the very serious and repugnant nature of this offence involving a vulnerable member of the community, I conclude that the Australian community would expect that Mr ALI should not hold a visa.

Strength, nature and duration of ties

19    The Minister’s reasons referred to the submissions made by Mr Ali’s family members and his migration agent regarding the traumatic family history that had been disclosed, and accepted that non-revocation would cause Mr Ali’s three sisters serious emotional hardship, as well as emotional hardship to other members of his extended family. As the conclusions in relation to this topic are relevant to ground 3, it is worth setting out the Minister’s statement that:

30.     Mr ALI is also supported by his extended family and statutory declarations all state he is hardworking, generous and a person of good character.

31.     I am cognisant that Mr ALI has worked for the same company as a tyre fitter for the past 22 years. I take into consideration a statutory declaration from the employer stating Mr ALI is a good worker with good character. I note that Mr ALI’s former employer would employ him again after he is released.

32.     I also take note of Mr ALI’s claim that he has been contributing to the community by paying taxes, which assisted in funding more services in the community.

33.     I acknowledge submissions from several family members and others that Mr ALI has often helped his neighbours in time of need, both physically and financially.

34.     I find that Mr ALI has close family and social ties, and has positively contributed to the community. I recognise the effect of non-revocation for family members in Australia will be severe, and his friends and social ties will be disappointed.

Extent of impediments if removed

20    The Minister's reasons on this topic, which are relevant to ground 4, were as follows:

35.     In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the impediments that Mr ALI will face if removed from Australia to his home country of Fiji in establishing himself and maintaining basic living standards.

36.     I take into account that Mr ALI has not lived in Fiji for 29 years and he has no personal support there. Mr ALI stated he ‘would not survive without any job, shelter, essential medication and every living essentials’ and his mental health will be affected, a worry that is also shared by his family.

37.     Mr ALI has physical impairments such as high blood pressure and arthritis, for which he takes medication. Mr ALI also has lost his chewing teeth and only eats soft food, which is not properly nutritious.

38.     I also note that Mr ALI’s family state they would not be able to visit him in Fiji due to the distance and cost of travel.

39.     I recognise that return to Fiji would be difficult for Mr ALI, particularly in the absence of family and social support. I acknowledge his medical conditions, and consider that the health system in Fiji would not be of the same high standard of that available to him in Australia. I find that Mr ALI will face hardship in establishing himself in Fiji, and not having his family with him will add to this hardship. I also note that Mr ALI has expressed fears of harm in returning to Fiji and that his brother was murdered there. I find that these fears will exacerbate his hardship in settling into Fiji, although I note that Fiji has law enforcement public services available that may assist Mr ALI if he requires protection.

40.    I find that although Mr ALI did reside in Fiji for some of his adult life, having since lived in Australia for a significant period, he may not be fully familiar with the current culture in Fiji on arrival there.

Protection of the Australian community

21    Grounds 5, 6 and 7 raise, in different ways, issues concerning the sexual intercourse offence resulting in a gaol term, and the nature and extent of any risk of harm to the Australian community by reason of possible reoffending. The conclusions reached by the Minister that are relevant to those grounds are set out below.

22    The Minister’s reasons stated the following about Mr Ali’s offending by way of introduction:

41.    In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the consideration of the protection of the Australian community, noting in particular Mr ALI’s claim he does not pose an unacceptable risk of reoffending. I considered the Government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens.

42.    In considering the nature and seriousness of Mr ALI’s criminal offending I am of the view that sexual offences are very serious, particularly where the victim is a vulnerable person such as a young child.

43.    On 2 October 2015, Mr ALI was convicted in the District Court of New South Wales of Sexual Intercourse with person under the age of 10 years and sentenced to four years imprisonment.

23    Paragraphs 44 to 49 of the Minister’s reasons then considered Mr Ali’s criminal conduct in some detail, followed by findings that were objected to in ground 5 (verbatim):

50.    I find Mr ALI’s sexual offending to be very serious, noting the very young age of the victim and the opportunistic nature of the offence and the noted harm.

51.    I find that the sentence Mr ALI received is a further indication of the seriousness of the offending especially given it was his first offence. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered that the sentence of four years imprisonment shows that the court viewed the offending as very serious.

24    The Minister’s reasons then turned to the topic of the risk to the Australian community, after outlining the aspects of the criminal proceedings relevant to the risk of reoffending. The reasons also referred to Mr Ali’s difficulties with alcohol consumption and efforts to change that, including him remaining sober for two years and his history of being hardworking, honest and having strong family support, as well as complying with strict bail conditions and not requiring sex-offender-specific treatment. The reasons then stated the following conclusions and findings (verbatim):

60.    I take into account that the pre-sentence report referred to in the 2015 sentencing, found Mr ALI is of low risk of reoffending, especially relative to other male sexual offenders in the low risk category. However, I note that the Judge was not convinced that this equated to Mr ALI being rehabilitated and not at risk of reoffending, considering his inability to acknowledge guilt. I consider this is indicative of a risk of Mr ALI reoffending.

61.    I also take into account that the nature Mr ALI, having been convicted of a sexual offence against a child, is liable on release to be recorded under the requirements of the Child Protection Registry in New South Wales, to have his details recorded with police and to be required to comply with reporting requirements. I consider that such monitoring will act as a protective factor in lowering his risk of reoffending.

62.    Overall, I find there is an ongoing risk that Mr ALI will reoffend. Should Mr ALI reoffend in a similar manner, it could result in serious physical and/or psychological harm to a minor member or members of the Australian community.

Conclusion of the Minister

25    The salient parts of the conclusions reached in the Minister’s reasons were as follows:

66.    In considering, in light of Mr ALI’s representations, whether I was satisfied that there is another reason why the original decision should be revoked, I gave primary consideration to the best interests of Mr ALI’s great niece(s)/nephew(s). I found that their best interests would be served by revocation of the original decision, though I gave this less weight in the known circumstances.

67.    In addition, I have considered the length of time Mr ALI has made a positive contribution to the Australian community for 22 years and the consequences of non-revocation of the original decision for his family members, in particular his sisters and other close family members as well as his other family.

68.    On the other hand, in considering whether I was satisfied tht there is another reason why the original decision should be revoked, I gave significant weight to the serious nature of the crime committed by Mr ALI, that is of a sexual nature and involved a vulnerable member of the community, that being a minor of a very young age.

69.    Further, I find that the Australian community could be exposed to harm should Mr ALI reoffend in a similar fashion involving sexual offending against a child. I could not rule out the possibility of further offending by Mr ALI.

70.    I am cognisant that where harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa, even applying a higher tolerance of criminal conduct by Mr ALI, than I otherwise would, because he has lived in Australia for half of his life.

71.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr ALI represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his grand-niece(s)/nephew(s), as a primary consideration, and any other considerations as described above. These include his lengthy residence and bonds, his fears of harm if returned to Fiji, his employment history, his volunteer/charity work in the community and familial ties to Australia, and the hardship Mr ALI, his family and social networks will endure in the event the original decision is not revoked.

Grounds of REVIEW

Ground 1 – expectations of the Australian community

26    This ground of review takes issue with the Minister’s reasons at [16] to [18], reproduced at [18] above. At [6] of his reasons, the Minister referred to the fact of Mr Ali being given a conviction and four-year head sentence for having sexual intercourse with a person under the age of 10 years, without referring to the subjective circumstances of his offending. Later, at [42] to [51], the reasons examined the circumstances of Mr Ali’s offending, largely by reference to the trial judge’s sentencing remarks.

27    Mr Ali submits that while the Minister did not have to have regard to the expectations of the Australian community in the sense of this being a mandatory relevant consideration (noting, contra, that asserted community expectations in favour of revocation were raised in written submissions furnished by Mr Ali’s migration agent), once he chose to take this matter into account, that gave rise to a requirement to ask the correct hypothetical question in order to decide what that expectation would be. He submits that the question that had to be asked and answered was what the Australian community would expect “knowing or taking into account the particular facts of the case”, which were said to include Mr Ali’s absence of premeditation, the short duration of the offending, the effect of his intoxication at the time, his absence of prior convictions, his low risk of reoffending, his past and intended future contribution to Australian society, his prior general good character and the hardship to his three sisters.

28    Mr Ali’s submissions characterised [18] of the Minister’s reasons as addressing only the objective nature of the offence, and as referring to, but not addressing, the particular circumstances of Mr Ali’s offending. This partial reference is asserted to constitute a jurisdictional error.

29    The Minister submits that [18] of the reasons refers to the objective offending and to the subjective circumstances as well, with the latter being sufficiently addressed at [42] to [51] and elsewhere in the reasons. However, the Minister submits that it was open to the Minister to focus on the objective seriousness of the nature of the offence as warranting a finding that the community would not expect Mr Ali to hold a visa. In substance, the Minister’s submission was that it was not necessary for the Minister to endeavour to assess what community expectations might be about this particular instance of offending, including the subjective circumstances.

30    Both parties accepted or relied upon my prior consideration of what is involved when the Minister has regard to community expectations in Afu at [81] and [85]:

81.    The Minister submits that it is plainly unnecessary for the Tribunal to have evidence before it of the views of Australians before it can make findings as to what it considers to be the expectations of the Australian community in a given case. That is because the Tribunal, in common with the Minister or his delegate, is permitted to have regard to the expectations of the Australian community in the context of determining whether or not to revoke the cancellation of a non-citizen’s visa. That, in turn, is because, quoting Djalic v Minister for Immigration [2004] FCA 151; 139 FCR 292 at [71]:

… the legislation is designed to protect the community from criminal or other undesirable conduct and to permit the Minister to give effect to what might loosely be described as community expectations that perpetrators of such conduct, should not be a permitted to remain in Australia.

…

85.     … The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. …

31    The live question dividing the parties is whether the consideration of community expectations must be assessed by reference to the subjective circumstances of the offending, placing the putative community in the position of understanding, in some way, the totality of what took place. For the following reasons, I am of the view that they do not. In my opinion, it was open to the Minister to form the view, as a starting point, that the Australian community would expect that any non-citizen who has been convicted of sexual intercourse with a person under the age of 10 years would not hold a visa. The Minister was not required to engage in a weighing exercise in the manner of a judge balancing objective and subjective elements of a given instance of offending, nor form a view as to community expectations that might apply after engaging in such a process. It was therefore open for the Minister to reach the conclusion set out in his reasons at [18]. That approach does not constitute any error at all, let alone a jurisdictional error.

32    I do not consider, even at first blush, that this ground has sufficient merit to warrant the granting of an extension of time in which to bring this aspect of Mr Ali’s challenge. An extension of time is therefore refused in relation to this ground.

Grounds 2, 3 and 4 – failure to give the required degree of consideration to representations

33    These three grounds are grouped together because they involve the application of the same general principles, namely the obligation imposed on the Minister to give the degree of consideration to representations made that is necessary for a revocation decision to be free of jurisdictional error. The general nature of this obligation was spelt out, albeit in the visa cancellation context, rather than in the revocation of cancellation context, in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [29] to [63]. In particular, the Full Court stated (at [45], emphasis in original):

Subsequent cases have endorsed the principle that when a decision maker is required by statute to consider a claim or other mandatory criteria, the decision maker must engage in an active intellectual process directed at that claim or criteria (Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 at [47]-[54] per Lindgren, Rares and Foster JJ; SZVVR v Minister for Immigration and Border Protection [2016] FCA 1364 at [24]-[26] per Collier J; Telstra Corporation Limited v Australian Competition and Consumer Commission [2017] FCA 316 (Telstra v ACCC) at [62] and [71] per Foster J; Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; 190 FCR 248 (Khadgi) at [57] per Stone, Foster and Nicholas JJ; AVU15 v Minister for Immigration and Border Protection [2017] FCA 608 at [10]-[11] per Bromberg J). This does not require the decision-maker to refer in the reasons for decision to every piece of evidence and every contention made by an applicant, and it may be that some material provided will not be relevant to the criteria. Also, in accordance with well-known authority, the reasons of the decision-maker should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ, as cited in Khadgi at [63] and Telstra v ACCC at [62]).

34    The threshold question revealed by the above quote is whether any particular representation rises to the level of being a claim that requires an individualised “active intellectual process”, and, if so, whether that requirement has been met. If a claim is found to meet that threshold, the nature of the obligation imposed on the Minister, and on the Court in assessing what has taken place, was described in Carrascalao as follows (emphasis in original):

43.     It is also important to note that, at 462, Black CJ offered the following meaning of the word “consider” which, in our view, is also applicable when there is a legal obligation to consider something, including the individual merits of a particular case (emphasis added):

Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.

…

47.     Thus the central focus in the two proceedings here is on the question whether the Minister engaged in an active intellectual process in considering the merits of the two cases before him. Whether or not there was such an active intellectual process requires the Court to conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case. These include, but are not limited to, the nature and volume of the material placed before the Minister to assist his decision-making, as well as other matters which arise from the relevant statutory context. We will discuss some of those statutory indicators shortly.

35    For each of the classes of representation covered by these three grounds of review, Mr Ali submits that not enough consideration was given; and the Minister submits that no more was required. Determining these grounds is therefore principally an exercise in characterisation, with the applicable legal principles not being in dispute.

36    It is convenient to set out the background facts and the submissions for Mr Ali on each ground, before turning to the Minister’s submissions.

Mr Ali’s submission on ground 2 – representations that he be given a second chance

37    Mr Ali’s migration agent furnished written submissions on his behalf, seeking the revocation of his visa cancellation. Those submissions enclosed statutory declarations from his three sisters, a brother-in-law, a former brother-in law and a friend. The agent’s submissions made only a passing reference in the closing paragraph to a hope that the submissions satisfied the delegate as to the existence of reasons to reinstate Mr Ali’s visa so as to “give him another chance to stay with his close family in Australia.” Three of the statutory declarations, from both of his sisters and from his brother-in-law, asked that Mr Ali be given a second chance, in substance, to prove himself as worthy to remain in Australia. It was common ground that this request was not mentioned in the Minister’s reasons. Mr Ali asserts that it was a jurisdictional error not to address this request, which is characterised by him as a claim or representation.

Mr Ali’s submission on ground 3 – representations about his future capacity to contribute to Australia

38    In Mr Ali’s personal circumstances form furnished in support of his revocation application, in his migration agent’s submissions, and in a statutory declaration from his former employer, reference was made to the offer to resume the job he had occupied for some 22 years. The substance of this complaint is that the Minister made reference to Mr Ali having worked and paid taxes in the past, thereby contributing to Australian society, but made no express reference to his future capacity to do so. The only reference made on this topic was in the Minister’s reasons at [31], reproduced at [19] above, which recorded the fact that Mr Ali’s former employer would employ him again if he was released from immigration detention. All other references in the Minister’s reasons were to past employment and thereby his past contribution to Australian society. Mr Ali submits that a failure to make express reference to his intended future contribution by working and paying taxes was a jurisdictional error.

Mr Ali’s submission on ground 4 – representations about the prospect that he would not survive if returned to Fiji

39    In the agent’s submissions and in statutory declarations from two of his sisters and from his brother-in-law, reference was made to certain serious health issues suffered by Mr Ali and of the extreme difficulties he would face in returning to Fiji. These claims were addressed in the Minister’s reasons at [35] to [39], reproduced above at [20].

40    In relation to those passages, Mr Ali submits that the claim recorded at [36] that he would not survive was not addressed by referring at [39] only to him facing hardship. He submits that the Minister was required to reach a conclusion that he would in fact survive, and that the Minister’s failure to do so constituted a jurisdictional error.

The Minister’s submissions on grounds 2, 3 and 4

41    The Minister submits that Carrascalao at [45] and Applicant WAEE v Minister for Immigration and Indigenous Affairs [2003] FCAFC; 236 FCR 593 (at [46]-[47]), establish that there is no need for the Minister to refer to every matter raised in representations, nor to refer to every piece of evidence. The Minister submits that, while representations as a whole are mandatory considerations, this does not extend to any particular statement made, citing Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [56]. The Minister submits that this is not a case in which he has entirely overlooked a critical representation, or failed to consider a “substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked under s 501CA(4) of the Act, which if accepted would or could be dispositive of the decision…”: Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [30].

42    The Minister submits that upon a fair reading of the reasons given, each of the topics was adequately dealt with, stating that:

(1)    as to ground 2, the references to a second chance were not a sufficiently independent or critical claim to require that they be specifically addressed, but were more in the nature of an aspect of the general plea that Mr Ali be allowed to remain;

(2)    as to grounds 3 and 4, a fair reading of the Minister’s reasons indicated that he was cognisant of, and took into account, the contribution Mr Ali made to the community by way of services provided and the payment of taxes, and the impediments he would face in returning to Fiji.

43    The Minister therefore submits that no jurisdictional error has been established as to any of grounds 2, 3 or 4.

Consideration of grounds 2, 3 and 4

44    In Minister for Home Affairs v Buadromo [2018] FCAFC 151, the following pertinent observations were made by the Full Court:

48.     Generally, an obligation to give reasons does not require a “line-by-line refutation of the evidence of the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal”. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 at [65]-[67] per McHugh J).

49.    It is generally not essential for a tribunal or other primary decision-maker to refer to every piece of evidence or contention advanced by a claimant. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593, the Full Court of this Court said (at [46]-[47]):

It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

45    Applying the above observations from Buadromo, it is my view that Mr Ali’s submissions in respect of grounds 2, 3 and 4 overstate the significance of the three sets of claims relied upon, overstate the obligation imposed on the Minister in relation to each, and understate how each general area was dealt with. So much is apparent on the face of the grounds as pleaded and in the context of the impugned paragraphs of the Minister’s reasons.

Ground 2

46    As to ground 2, the references in the agent’s submissions and the three statutory declarations to the desirability of giving Mr Ali a second chance to prove himself were but a part of a general plea for Mr Ali to be allowed to remain in Australia, and did not constitute a separate, distinct or critical claim requiring individual consideration by the Minister. Each reference to a second chance was no more than part of the detail in the narrative in the three statutory declarations. Similarly, the reference to “another chance” in the final paragraph of the agent’s submissions was merely a passing reference. It was not a separate claim and the overarching claims that this formed a part of were amply addressed. This ground of review did not have sufficient merit on even an impressionistic reading to justify the grant of an extension of time. An extension of time is therefore refused in relation to this ground.

Ground 3

47    As to ground 3, the Minister was clearly cognisant of Mr Ali’s contribution to the community by way of his past work and payment of taxes. The Minister made specific reference to the offer to resume that employment, making it clear that he had appreciated that the past contribution, by reason of resuming work, would continue as it had before if he were permitted to remain in Australia. The express reference in the Minister’s reasons to the offer of employment, in the context of clear acceptance of Mr Ali’s prior good work history and contribution to the community, meant that this ground of review never had sufficient impressionistic merit to justify the grant of an extension of time. An extension of time is therefore refused in relation to this ground.

Ground 4

48    As to ground 4, the Minister, by reproducing in quotes Mr Ali’s claim that he would not survive, was entitled to assess the situation as being less dire, and to characterise it instead as constituting no more than anticipated hardship and a fear that harm might befall him. The Minister was not required to make a speculative assessment of the future in relation to the precise terms of this claim, especially as it was essentially rhetorical, although doubtless heartfelt. Such a predictive exercise necessarily forms part of the assessment in refugee cases as to whether a fear of persecution is well-founded. The extent of any prediction required in a revocation case is always going to be highly fact- and circumstance-specific. It will likely turn on what is being asserted and the factual foundation for asserting it.

49    In all cases, what matters is whether the Minister “has engaged in an active intellectual exercise and considered the representations in a meaningful way” in relation to the impediments Mr Ali would face upon return to Fiji: see Buadromo at [60]. In the circumstances, the Minister was not required to endeavour to determine with precision what would happen in the future by way of little more than speculation. I am satisfied, after careful consideration, that no more was required, and that the way in which the Minister’s conclusions were expressed did not amount to any failure to give proper and genuine consideration to the representations made as to the impediments that Mr Ali would face upon returning to Fiji.

50    I consider that ground 4, by pointing to a claim that was raised and the manner in which it was addressed, did have sufficient merit on its face to warrant the grant of an extension of time. With that grant, however, on closer examination the ground must nonetheless fail.

Ground 5 – error in characterising the offence as “very serious”

51    The Minister’s reasons at [43], [50] and [51] are reproduced at [22]-[23] above. Mr Ali submits that the findings at [50]-[51] involved a jurisdictional error because the sentencing remarks had referred to the offence as being at the lower end of the scale. In reference to the decision of Collier J in Lyons v Minister for Immigration and Border Protection [2017] FCA 1381, Mr Ali submits that the Minister’s reasons involved a “cherry-picking” of the remarks on sentence, focussing only on the adverse parts.

52    As to the latter allegation, I do not accept that the summary of the remarks on sentence in the Minister’s reasons are inappropriately selective, let alone unfairly so. Short of reproducing greater detail verbatim, the burden of those sentencing reasons was captured. The Minister was entitled to place reliance on those aspects of the remarks on sentence that he considered pertinent to the decision that he was called upon to make. I do not see how selecting parts of the remarks on sentence for particular attention, without more, could constitute any jurisdictional error. There would have to have been a significant and material omission rising to the level of irrationality, which clearly did not take place in the present case.

53    The complaint made about the use of the words “very serious” to describe the offence committed by Mr Ali, when juxtaposed with the finding made by the trial judge in sentencing remarks of the offence being at the lower end of the scale, is misconceived. The trial judge and the Minister were performing very different functions. The trial judge was required to have regard to the wide spectrum of potential conduct covered by this particular offence provision, especially by reference to breadth of conduct encompassed within the definition of sexual intercourse, in order to assess objective seriousness for sentencing purposes. That is the part of the means by which a sentence is arrived at, including by reference to the maximum penalty reserved for offences in the worst category. It entails a comparison with other offences that may be committed against the same provision to ascertain where, objectively, the particular instance of the offending falls in a relative sense.

54    The Minister was not so constrained, and, rather, was entitled to look at the offence in a broader objective way, without the comparative assessment that is part-and-parcel of the criminal sentencing process. Viewed in this way, the Minister was entitled to describe Mr Ali’s offence as very serious, and was not bound to adhere to a criminal sentencing characterisation. This did not constitute any error at all, let alone jurisdictional error.

55    This ground of review also did not have sufficient merit at even an impressionistic level to justify the grant of an extension of time. An extension of time is therefore refused in relation to ground 5.

Ground 6 – risk to the Australian community

56    The Minister’s reasons:

(1)    canvassed the elements of Mr Ali’s offending that indicated that he might be at risk of reoffending, finding that the risk was low but ongoing: see [60]-[62] of the Minister’s reasons, reproduced at [24] above; and

(2)    weighed this risk against the harm that would likely be inflicted on the Australian community if he did reoffend, concluding that even the possibility of that occurring was unacceptable: see [69]-[71] of the Minister’s reasons, reproduced at [25] above.

57    This ground of review asserts that there was jurisdictional error in the finding at [62] that there was an ongoing risk that Mr Ali would reoffend and in concluding at [71] that he represented an unacceptable risk of harm to the Australian community. Mr Ali made the following submissions as to what the Minister’s reasons were said to reveal by way of jurisdictional error:

(1)    The association between the offending and intoxication was ameliorated by the fact that Mr Ali had not been drinking for two years and would do his utmost to stay sober, both points having been noted in the Minister’s reasons at [55] and [56], being matters that were the subject of express representations. Mr Ali submits that as this was critical in assessing the risk of reoffending, the Minister failed to give proper and genuine consideration to this representation.

(2)    It was irrational or illogical for the Minister to come to the conclusion that the applicant represented an unacceptable risk of harm to the Australian community at [71], in circumstances in which there had been a finding at [60] that there was a low risk of reoffending, a finding at [61] that the monitoring of Mr Ali on a child protection register would act as a protective factor in lowering his risk of reoffending, and a finding at [69] that the Minister could not rule out the possibility of further offending, finding that the risk of reoffending was no higher than a possibility, together with the sentencing judge finding that the offence, although serious, was towards the lower end of the scale without being at the lowest end.

58    Reliance was placed by Mr Ali on the decision in Lyons v Minister for Immigration and Border Protection [2017] FCA 1381. However, Lyons largely turned on the failure of the Minister to appreciate well-settled sentencing principles as they applied to the facts of that case and had an important bearing on the assessment of risk to the community. It turned on the Minister having regard to a sentence that was imposed, but not to the fact that the sentence was suspended, and thus how that latter factor needed to be considered in relation to assessing risk to the community. A second aspect of Lyons concerned the adverse treatment of a pragmatic guilty plea by treating that as somehow an aggravating circumstance. Each misunderstanding affected the exercise of jurisdiction. There is no such departure from the understanding of sentencing principles demonstrated in this case, let alone such a departure that could be said to have exposed error in the performance of the jurisdictional task. Lyons must be seen as a rare and isolated case, turning on its own facts that exposed jurisdictional error in an unusual way.

59    The Minister submits that:

(1)    it was open to him to conclude, on the basis of the evidence, that Mr Ali was an ongoing risk to the community – for the reasons that follow, I accept this submission;

(2)    he did not fail to consider Mr Ali’s representation that he had been sober for two years, as that was expressly considered – again, that is undoubtedly correct;

(3)    it was open to interpret the remarks on sentence as constituting a finding that there was a risk of Mr Ali reoffending – while not crystal clear, that is an interpretation that was available to the Minister;

(4)    while it may be correct to suggest that a person’s knowledge that their visa may be cancelled if they reoffend could reduce the risk of that occurring, there was no need to hypothesise about this possibility, especially as Mr Ali did not make any representations on this topic – this point was expressly noted as a protective factor by the Minister at [61]; and

(5)    it was open to find that Mr Ali constituted an unacceptable risk to the community, as doing so did not unduly elevate the chance that he might reoffend but, rather, emphasised the seriousness of the consequences should he do so – indeed, it could not be ruled out that Mr Ali would reoffend, the nature of the offending was very serious and, if it were repeated, it would inflict lasting damage on the victim. As such, in my view and for the reasons that follow, the Minister’s submissions as to how to interpret his conclusions are reasonable on this point.

60    The central complaint made by Mr Ali is in truth a thinly disguised exercise in merits assessment, dressed up in the language of legal unreasonableness, irrationality and illogicality. In my view, none of the conclusions asserted by Mr Ali are reasonably open on any of the arguments he has advanced. It is of some importance to note that Mr Ali has always denied sexually assaulting his neighbour’s grandchild. This is despite the fact that the evidence of his offending was apparently overwhelming. The tail-end of the assault was witnessed by the child’s mother upon entering the room and interrupting him and his DNA was later found on her underwear. Signs of physical injury (albeit not lasting signs) that were consistent with digital penetration were also observed from the victim following medical examination. The victim was able to describe reasonably clearly what Mr Ali had done. All of those features are drawn from the Minister’s reasons at [44] to [47]. Mr Ali’s continued denial of having committed the offence was expressly referred to in the sentencing remarks in a manner that does suggest, albeit not with ideal clarity, a risk of reoffending, this being a point that was also noted in the Minister’s reasons at [60], as well as the prior observation at [54] of Mr Ali’s lack of insight into his own offending.

61    Mr Ali’s continued denial of committing the offence had a role in the assessment of his risk of reoffending, both in relation to his sentence and in relation to the Minister’s decision. The continued denial of the offending alone, as well as in combination with other factors, meant that neither the trial judge in imposing sentence, nor the Minister in deciding whether or not to revoke the visa cancellation, could rule out the possibility of Mr Ali reoffending. It does not matter in any material way how that risk is described, be it low or otherwise.

62    In those circumstances, not only was it rational for the Minister to conclude that there was an ongoing risk of Mr Ali reoffending, however low that risk might be, but that it might be seen to be very difficult to reach any other conclusion in a rational and coherent way. The Minister did no more than that. On the question of harm, the proper and rational way to read the Minister’s reasons, without any need to resort to a beneficial reading, is that he concluded that any risk of reoffending was too high, given how dire the consequences would be should that occur. Such a conclusion was fairly open to the Minister and was within the scope of decision-making that was for him alone to carry out.

63    I am of the view that this ground of review was at all times without merit on its face, even if some explanation was required to demonstrate why that was so. An extension of time must therefore be refused in relation to this ground.

Ground 7 – good character

64    This ground may be disposed of quite shortly. In substance, the complaint is a failure to give proper consideration to the evidence of Mr Ali’s general good character. There are two short answers to this complaint. First, on a fair reading of the Minister’s reasons, ample reference was made to Mr Ali’s working and family history apart from the blemish of this undoubtedly serious conviction. Nothing more was required.

65    Secondly, this matter must proceed upon the basis of it being incontrovertibly established that Mr Ali committed the offence, has served his sentence and is therefore not a person of good character for the purposes of visa cancellation: see s 501 of the Migration Act. In those circumstances, it is difficult to see why otherwise good character can properly be seen as an independent factor that must be considered by the Minister, at least beyond any submissions expressly made on this topic as forming part of an asserted “other reason” why a visa cancellation should be revoked. The Minister amply addressed the submissions that were made on this topic.

66    This ground of review was not at any time meritorious. An extension of time must therefore be refused in relation to this ground.

Conclusion

67    An extension of time should only be granted to rely upon ground 4, but that ground must fail. The application must therefore be dismissed with costs.

Associate:

Dated:    13 November 2018