FEDERAL COURT OF AUSTRALIA

Weti-Safwan v Minister for Immigration and Border Protection [2018] FCA 1761

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs of the application as agreed or taxed.

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

REASONS FOR JUDGMENT

JAGOT J:

1    The applicant sought an order quashing a decision of the Minister on 4 April 2017 to cancel the applicant’s Class WR Subclass 070 Bridging (Removal Pending) visa under s 501BA(2) of the Migration Act 1958 (Cth) (the Act).

2    Section 501BA(2)(b) requires that the Minister must first be satisfied that “cancellation is in the national interest”. The applicant argued that the Minister’s purported satisfaction as to that fact was unlawful. If this were correct then a condition precedent to the decision would not have been fulfilled so the decision would be invalid.

3    The applicant’s pro bono counsel, Ms Phillips (appointed through the Court’s Referral for Legal Assistance program), put the case for the applicant in detailed written and oral submissions. Nevertheless, I am unable to accept the arguments for the applicant. I am unable to discern any jurisdictional error affecting the Minister’s decision. It follows that the application must be dismissed.

Background

4    The applicant is a 36 year old citizen of New Zealand who first arrived in Australia as a 3 year old child on 19 June 1985. She has family in Australia, including a 6 year old daughter. Her child lives with her parents (the child’s maternal grandparents) and their current partners in a shared care arrangement. Her father (the child’s grandfather) has formal custody of her child due to orders imposed as a consequence of the applicant’s drug use and criminal history. The applicant hopes that, if she succeeds in her application and is released, she will regain custody of her child. She also has a husband in Australia, the father of the child, who spends his time caring for his own mother. She is currently in immigration detention in Victoria. She was held in detention previously in Villawood and wishes to be returned there, where she can be visited by her family and, in particular, have contact with her daughter.

5    Since the applicant’s arrival in Australia in 1985, she departed Australia on five occasions. She last arrived in Australia on 2 September 1996. On that occasion, she was granted a Class TY Subclass 444 Special Category (Temporary) visa. On 14 February 2005, the applicant’s Subclass 444 visa was considered for cancellation on character grounds under s 501 of the Act. By that time the applicant had a lengthy criminal history involving drugs, breaking and entering, trespass, larceny, shoplifting, breach of bond and other offences. Her visa was not cancelled, but she was issued a warning.

6    The applicant continued to offend. On 14 September 2006, the applicant’s Subclass 444 visa was cancelled on character grounds. She was detained from 15 September 2006 to 14 August 2009, when she was granted a Class WR Subclass 070 Bridging (Removal Pending) visa and released into the community.

7    The applicant continued to offend, with the addition of driving and weapon offences. On 18 February 2016, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Act on the basis that she failed a character test and was serving a sentence of imprisonment in custody for an offence. On 17 March 2016, she sought revocation of the cancellation decision. On 4 July 2016, a delegate of the Minister decided not to revoke the original decision. The applicant subsequently applied to the Australian Administrative Tribunal for review of the non-revocation decision and, on 12 October 2016, the Tribunal decided to revoke the mandatory cancellation decision under s 501CA of the Act. This revocation decision effectively became the original decision. On 4 April 2017, the Minister decided to set aside the Tribunal’s decision to revoke the mandatory cancellation of the applicant’s visa, and to cancel her visa pursuant to s 501BA of the Act. He provided reasons for his decision.

The Minister’s power

8    If a decision has been made to cancel a person’s visa on character grounds, and a delegate of the Minister or the Tribunal revokes the cancellation, then provided certain conditions are satisfied the Minister may set aside the revocation and cancel the visa under s 501BA of the Act. That is what occurred in the present case.

9    Section 501BA(1) provides that the section applies if (a) a delegate of the Minister; or (b) the Administrative Appeals Tribunal makes a decision under s 501CA (the original decision) to revoke a decision under s 501(3A) to cancel a visa.

10    Section 501BA(2) provides that the Minister may set aside the original decision and cancel the visa if the Minister is satisfied that (a) “the person does not pass the character test”; and (b) “cancellation is in the national interest”. That is, the Minister has a discretion to set aside the original decision and cancel the visa if satisfied in respect of the character and national interest criteria. The Minister’s states of satisfaction in respect of these criteria are jurisdictional facts or conditions precedent to the exercise of a discretionary power: see eg Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 61 and Re Minister for Immigration and Multicultural Affairs; Ex part Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59.

11    Section 501BA(3) provides that the rules of natural justice do not apply to a decision under s 501BA(2).

12    Section 501BA(4) provides that only the Minister personally can exercise the power under s 501BA(2).

13    The submissions for the applicant concerned the question whether the Minister was properly satisfied that cancellation was in the national interest.

14    Nothing in the Act defines “national interest”, but the phrase appears elsewhere in Pt 9 Div 2 of the Act. For example, s 501(3)(b) provides that the Minister may personally cancel a visa if (c) “the Minister reasonably suspects that the person does not pass the character test”; and (d) “the Minister is satisfied that … cancellation is in the national interest.” Sections 501A(2) and (3) contain the same language.

15    The Full Court of the Federal Court of Australia considered s 501(3) in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352. Mr Carrascalao had two children, both Australian citizens. A ground of review in that case was as follows:

22. Ground 4: The Minister erred in being satisfied that it was in the national interest to cancel each visa because he had not given proper, genuine and realistic consideration to (or have regard to) the information before him, and/or that state of satisfaction was unreasonable in the legal sense. The Minister also misconstrued the “national interest” within the meaning of s 501(3)(d) by adopting an impermissibly confined conception of that phrase, including by holding or assuming that the “national interest” did not include the best interests of the child.

16    The Court said:

156. There can be no doubt that, in this particular statutory context, the expression “national interest” is, like the expression “public interest”, one of considerable breadth and essentially involves a political question which was entrusted to the Minister.  For example, in Pilbara [Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; (2012) 246 CLR 379] at [42], in the context of construing a statutory discretion which vested a power in the Minister to declare a service under Pt IIIA of the Trade Practices Act 1974 (Cth), where one of the criteria was whether access, or increased access to a service “would not be contrary to the public interest”, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said (footnotes omitted and emphasis in original):

It is well established that, when used in a statute, the expression “public interest” imports a discretionary value judgment to be made by reference to undefined factual matters. As Dixon J pointed out in Water Conservation and Irrigation Commission (NSW) v Browning [[1947] HCA 21; (1947) 74 CLR 492], when a discretionary power of this kind is given, the power is “neither arbitrary nor completely unlimited” but is “unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view”. It follows that the range of matters to which the NCC and, more particularly, the Minister may have regard when considering whether to be satisfied that access (or increased access) would not be contrary to the public interest is very wide indeed. And conferring the power to decide on the Minister (as distinct from giving to the NCC a power to recommend) is consistent with legislative recognition of the great breadth of matters that can be encompassed by an inquiry into what is or is not in the public interest and with legislative recognition that the inquiries are best suited to resolution by the holder of a political office.

157. We consider that the observations in Pilbara have even stronger force when the relevant statutory expression is the “national interest” (see Plaintiff S156/2013 [Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; (2014) 254 CLR 28] at [40] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ and Madafferi [Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; (2002) 118 FCR 326] at [89] per French, O’Loughlin and Whitlam JJ).

158. In our view, it is unnecessary in these cases to determine all the issues of principle raised by the judicial review applicants as to the correct construction of the “national interest” and whether it encompasses the best interests of the child. This is because the ground fails on the facts of both cases. We accept the Minister’s submission that it is a matter for the Minister to decide, on the merits of any particular case, what national interest factors are engaged in that case (see Leiataua [Leiataua v Minister for Immigration and Citizenship [2012] FCA 1427; (2012) 208 FCR 448] at [21] per Jessup J). There is no obligation on the Minister, in determining whether or not to exercise his power under s 501(3), to advert to all and every possible consideration which may inform an assessment of the national interest in the particular case. Accordingly, the absence of any reference in this part of the Minister’s statements of reasons to the best interests of the child does not give rise to an inference that the Minister considered that, as a matter of construction, the national interest excluded the best interests of the child. We accept the Minister’s submission, that, at best, an inference might arise that the Minister regarded the best interests of the child as not bearing upon his assessment of the national interest in the particular circumstances of the cases relating to Mr Taulahi and Mr Carrascalao. Nothing we have said above is intended to deny the established view that the Minister’s satisfaction that cancellation is in the national interest must be a satisfaction which is attained reasonably (see Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 at [167] per Gummow and Hayne JJ, with whom Gleeson CJ agreed and Madafferi at [89] per French, O’Loughlin and Whitlam JJ).

17    In Candemir v Minister for Home Affairs [2018] FCA 1360 at [23], an application for judicial review of a decision made under s 501BA(2), Gleeson J recorded:

The matters of which the Minister must be satisfied for the purpose of exercising the power under s 501BA are whether the applicant has failed the character test, and whether it is in the national interest to cancel the visa. While the character test is the subject of clear legislative prescription, the national interest is not defined. In Anaki v Minister for Immigration and Border Protection [2018] FCA 77, a case that also involved a visa cancellation pursuant to s 501BA, Burley J explained the breadth of that statutory power as follows (at [12]):

The broad scope of the power conferred on the Minister by the relevantly similar power under s 501A(2) has been remarked on in many cases. In Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; (2012) 202 FCR 417 Bromberg J helpfully summarised the effect of the authorities as follows:

43. The authorities which have considered s 501A(2) (and in a similar context the reference to the national interest in s 501(3)), make it clear that the matters that the Minister may take into account in determining the national interest are largely matters for the Minister: Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220 at [89] (French, O’Loughlin and Whitlam JJ); Huynh at [74] (Kiefel and Bennett JJ); Tewao v Minister for Immigration and Citizenship [2011] FCA 1515 at [12] and [32] (Katzman J); Maurangi v The Honourable Chris Bowen MP, Minister for Immigration and Citizenship [2012] FCA 15 at [70] (Lander J); and see also Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [61] (Gleeson CJ and Gummow J); Re Paterson; Ex parte Taylor (2001) 207 CLR 391 at 418-419 (Gaudron J), 502-503 (Kirby J).

44. The exercise calls for a broad evaluative judgment. It calls for the Minister’s satisfaction in relation to a power that may only be exercised personally by the Minister: s 501A(5). Political responsibility and accountability is reposed in the Minister in relation to a subject matter of wide scope. All of that strongly suggests that the Minister is left largely unrestrained to determine for him or herself what factors are to be regarded as relevant when determining whether the cancellation or refusal of a visa is in the national interest and thereafter whether to exercise the discretion conferred by s 501A(2).

18    Justice Gleeson considered that the same remarks applied to s 501BA(2)(b): see [24].

19    I am satisfied that the same approach must be taken to s 501BA(2), another power entrusted personally to the Minister using substantially the same language.

Submissions for the applicant

20    The applicant made two principal submissions. First, it was contended that the Minister misconstrued the meaning of “national interest” so could not have attained the requisite state of satisfaction. Second, it was contended that even if the Minister had properly construed the meaning of national interest his satisfaction was not attained reasonably.

The national interest

21    The applicant’s first submission was that although the Minister was satisfied cancellation was in the “national interest” as he conceived of it, his conception was not one contemplated by s 501BA(2)(b). As put for the applicant, whilst the sub-section allows the Minister latitude to adopt and apply a reasonably appropriate conception of the national interest, the Minister cannot give the phrase “national interest” a meaning which effectively renders nugatory the condition on the exercise of the Minister’s discretionary power. The conception of the national interest the Minister applied in the present case was unreasonably narrow. In particular, it excluded the citizens of the national community most proximate to the applicant and most affected by the consequences of cancellation; her child and immediate family. Thus, it was submitted, the Minister failed to ask and answer the right question, with the consequence that Minister failed to attain the state of satisfaction which was a condition precedent to the exercise of the Minister’s discretionary decision-making power.

22    This, it was submitted, was supported by Lord Atkin’s warning against the “Humpty Dumpty” method of construction in Liversidge v Anderson [1942] AC 206. The case was about whether a wartime statute required the Secretary of State to have “reasonable cause to believe” in a fact (as the express terms of the provision said) or required only a bona fide belief that he had “reasonable cause to believe” in a fact as a condition precedent to making the discretionary decision to detain a person. In arguing against the latter construction, Lord Atkin invoked the absurdity of Lewis Carroll’s Humpty Dumpty (at 228):

“‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master — that's all.’” (“Through the Looking Glass,” c. vi.)

23    Lord Atkin’s warning is often associated with the following statement of Latham CJ in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 at 432:

It is therefore well settled that if a statute provides that a power may be exercised if a person is of a particular opinion, such a provision does not mean that the person may act upon such an opinion if it is shown that he has misunderstood the nature of the opinion which he is to form. Unless such a rule were applied legislation of this character would mean that the person concerned had an absolutely uncontrolled and unlimited discretion with respect to the extent of his jurisdiction and could make orders which had no relation to the matters with which he was authorized to deal. It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.

24    The principle upon which the applicant relied may be accepted but I consider that it is not engaged in the circumstances of the present case. My reasons reflect those given by the Full Court in Carrascalao at [158]. Although the Minister did not refer to the best interests of the applicant’s child or family in the section of his reasons which directly addressed the national interest, there is nothing in the Minister’s reasons to suggest he excluded from his conception of the national interest the interest of these citizens who were most proximate to the applicant.

25    Under the heading “National Interest”, the Minister said:

16. ‘National interest’ is not defined for the purposes of s501BA of the Act. Generally, courts have been reluctant to attempt to define the meaning of national interest in statutory contexts, but the national interest has been determined to be a different concept to the public interest.

17. In Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220, at [86], the Full Federal Court noted that the question of what is or is not in the national interest is entrusted by the legislature to the Minister to determine according to his or her own satisfaction, which must be attained reasonably. The court said:

‘The Minister in considering the national interest under s501A(2) may properly have regard to the circumstances which underpin the failure to satisfy him that an applicant for a visa passes the character test. There may be circumstances in which the seriousness of a person’s criminal history will be sufficient to satisfy the Minister that the refusal of a visa is in the national interest’.

18. I find that matters of national interest could include, amongst other things, the seriousness of Ms WETI-SAFWAN’s criminal conduct, having regard to the circumstances and nature of the conduct and the dispositions imposed by the court (emphasis added).

26    The Minister then considered the seriousness of the applicant’s criminal conduct. He said she has an “extensive criminal history which predominantly involves offences of dishonesty, driving and some drug related offences” and that “her numerous offences, the frequency of her offending and her breaches of dispositions, together with the cumulative effect of her offending, render her criminal history as serious”: at [19]. He referred to her conviction for numerous offences on 1 December 2015 and the characterisation the judge gave to her shoplifting offences as “serious”: at [20]-[21]. He referred to the Tribunal’s acceptance that the frequency and cumulative effect of the applicant’s offending was a matter of “serious concern”, “partially mitigated” by the fact that her offences were non-violent and did not target vulnerable members of the community: at [22]. He recorded his findings that although the applicant’s offences seem minor “considered individually”, “the cumulative effect on the community of her many offences is serious, as it includes the financial costs to her victims…together with the cost to community resources such as the courts, the police and the corrective services system”: at [23]. He also took into account that courts had sentenced her to incarceration which is a “last resort” and noted that, most recently, on 19 March 2015, a court sentenced her to 13 months imprisonment: at [24]-[25]. He noted that the applicant had appeared before court on more than 20 occasions and, in addition to the 13-month sentence, had received prison sentences of 12 months or longer on three occasions: at [26]. He concluded that the applicants conduct “was of such seriousness that I am satisfied it is in the national interest to cancel her visa”: at [27].

27    In his conclusion, the Minister said:

89. I find that the Australian community could be exposed to further harm should Ms WETI-SAFWAN reoffend in a similar fashion. I could not rule out the possibility of further offending by Ms WETI-SAFWAN notwithstanding factors including her efforts at rehabilitation, her stated remorse, her intended rehabilitation from the use of illicit drugs and the strong support from her family. The Australian community should not tolerate further risk of harm.

90. I found the above consideration outweighed the countervailing considerations in Ms WETI-SAFWAN’s case, including the primary consideration in relation to the best interests of…her minor Australian citizen child and her minor siblings in Australia; the length of time Ms WETI-SAFWAN has resided in Australia; her strong familial and social ties to Australia; the hardship to her family members and others in Australia; and the impediments she is likely to face in returning to New Zealand.

91. I am cognisant that where significant harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel the visa. This is the case even applying a higher tolerance of criminal conduct by Ms WETI-SAFWAN than I otherwise would, because she has lived in Australia for most of her life and from a very young age.

92. In reaching my decision I concluded that Ms WETI-SAFWAN represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.

93. Having given full consideration to all the information before me in this case, I find that the considerations above favouring non-cancellation are outweighed by the national interest considerations referred to above. …

28    The applicant’s written submissions said:

9. In the absence of a test of what is in the national interest, criteria of significance to the Australian people which appear relevant to administrative discretions exercised in the national interest in the contexts arising under the Migration Act must include:

• the stability of the family;

• the welfare of Australian children;

• consideration of the impact on Australian citizens of executive decisions made without natural justice to those citizens (in this instance those citizens include Ms Weti-Safwan’s daughter, siblings, parents, step-parents and broader family members);

• maintenance of and compliance with the rule of law through people paying and serving penalties imposed according to law;

• restraint by the executive from imposing additional significant penalties when sentences imposed by the courts have been served.

• proportionality in the exercise of bureaucratic authority.

10. Ms Weti-Safwan’s daughter Miriam Safwan’s right as a citizen of Australia for her welfare to be taken into account as a primary consideration was stated by Gaudron J in Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh [[1995] HCA 20; (1995) 183 CLR 273 at 375]. …

11. The criteria the Minister finds amount to matters of national interest are:

a. “the seriousness of Ms Weti-Safwan’s criminal conduct having regard to the circumstances and nature of the conduct and the dispositions imposed by the Court”. In support of this view the Minister recites the frequency of Ms Weti-Safwan’s shop lifting and two counts of larceny as having a cumulative effect meaning her offending conduct is a matter of serious concern. The Minister notes the AAT’s finding that Ms Weti-Safwan’s offending is “partially mitigated by her non-violent behaviour ..and that… she had not committed offences against vulnerable members of the community”.

b. the financial costs to the victim and the community’s resources such as the courts, police and the corrective services system in the administration of justice.

12. These criteria - the cumulative effect of multiple offences and financial cost to the community - satisfy the Minister “it is in the national interest to cancel her visa.”

13. Ms Weti-Safwan submits that the Minister was unreasonable when he considered how matters of national interest applied to her circumstances, that the criteria applied are too narrow to be a proper exercise of the scope of the statutory authority conferred upon the Minister and therefore lack evident and intelligible justification.

29    Putting to one side for the time being the references to “scope of statutory authority” and “evident and intelligible justification” at the conditional stage of the decision-making process, it is true that the Minister found the two identified matters relevant and, ultimately, determinative of his satisfaction that cancellation was in the national interest. It is not necessarily true that he found those two matters the only matters that could be relevant. He recognised that “matters of national interest could include…other things”: at [18]. To adopt what the Court said in Carrascalao at [158], “at best, an inference might arise that the Minister regarded the best interests of the child [and family] as not bearing upon his assessment of the national interest in the particular circumstances of the case”.

30    Nor can it be inferred that because the Minister considered the best interests of the appellant’s child and family to favour non-cancellation and the national interest to favour cancellation (at [93]) that he necessarily excluded family considerations from national interest considerations. It is true that the family group is most proximate to the appellant, and in that sense it may have been open to the Minister to give them more attention than other citizens in considering the national interest. But there is no suggestion to the Minister took a contrary view. And even if he did, there would be no legal error in considering that continued offending could negatively affect enough people, not just immediate victims but everyone who contributes to the community’s criminal justice resources, that the family’s interests did not make a determinative impact on the national interest as a whole.

Reasonableness

31    The applicant’s second submission was that if the Minister had a proper conception of the national interest, his satisfaction that cancellation was in the national interest was not attained reasonably. It was said that there were two reasons, in fact correlated, but either of which would be sufficient to invalidate the Minister’s decision. First, the applicant contended that the Minister took an erroneous view of a critical factor in the reasoning process that led to his satisfaction, the severity of the applicant’s criminal history, so that his satisfaction was not attained reasonably. Second, the applicant contended that the Minister gave such disproportionately little weight to what must have been relevant and countervailing factors, including the consequences for the applicant’s child and family as Australian citizens, that his satisfaction was not attained reasonably.

32    In explaining what was meant by reasonableness, the applicant drew upon the judgment of Kiefel CJ in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713. There her Honour said:

10. In the joint judgment in Minister for Immigration and Citizenship v Li [[2013] HCA 18; (2013) 249 CLR 332 at 367 [76]] 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 may be 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.

11. Statements such as that made in the Wednesbury case [Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230], that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case.  But it serves to highlight the fact that the test for unreasonableness is necessarily stringent.  And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion.

33    The applicant also relied on the following passage of Gageler J, quoting the Full Court of the Federal Court in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [9]-[11] and a paper by Chief Justice Allsop, ‘The Law as an Expression of the Whole Personality’ [2017] (Summer) Bar News 25 at 31:

59. References in Stretton to a conclusion that a decision is legally unreasonable being “evaluative” and to the task being “not definitional, but one of characterisation” were usefully directed to emphasising that determination of whether a purported exercise of a statutory power is so unreasonable that no reasonable repository of the power could have so exercised the power is informed not only by “the terms, scope and policy of the statute” but also by “fundamental values” anchored in the common law tradition.  Reasonableness is itself a traditional conception of the common law – a translation of “the human into the legal”.  Reasonableness is not exhausted by rationality; it is inherently sensitive to context; it cannot be reduced to a formulary.  In the discernment of unreasonableness, “[t]here are no talismanic words that can avoid the process of judgment”.

34    The focus of SZVFW, Li, Stretton and Wednesbury is reasonableness in the exercise of a discretionary power. The focus of SZMDS (Gummow ACJ and Kiefel J at [51] and [53]; Crennan and Bell JJ at [132] and [135]), S20, Minister for Immigration and Multicultural Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 and Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, in which the High Court spoke instead of determinations that are illogical, irrational or not based on findings or inferences of fact supported by logical grounds, is reasonableness in attaining a state of satisfaction, that state being a “jurisdictional fact” upon which the exercise of a discretionary power is conditioned. The present case falls within the second category as the applicant’s contentions concerned not the Minister’s discretion but the reasonableness of the Minister’s satisfaction that cancellation was in the national interest.

35    In SZMDS Crennan and Bell JJ referred to the “undeniable semantic overlap between “irrationality”, “illogicality” and “unreasonableness”” (at [128]) and said (at [130]):

…accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable”…

36    In Stretton Allsop CJ said:

2. The proper elucidation and explanation of the concepts of jurisdictional error and legal unreasonableness does not depend on definitional formulae or on one verbal description rather than another.  Both concepts concern the lawful exercise of power. For that reason alone, any attempt to be comprehensive or exhaustive in defining when a decision will be sufficiently defective as to be legally unreasonable and display jurisdictional error is likely to be productive of complexity and confusion. One aspect of any such attempt can be seen in the over-categorisation of more general concepts and over-emphasis on the particular language of judicial expression of principle. Thus, it is unhelpful to approach the task by seeking to draw categorised differences between words and phrases such as arbitrary, capricious, illogical, irrational, unjust, and lacking evident or intelligent justification, as if each contained a definable body of meaning separate from the other.

3. These words and phrases express a rule that is directed to the limits of the exercise of power, and, because of that function, are necessarily expressed as abstractions applying to the infinite variety of decision-making under variously expressed statutory provisions, in a wide variety of legal contexts. 

37    The most that can be said here is that although attention must ultimately be paid to the particular decision and its statutory context, jurisdictional error due to legal unreasonableness will generally be present only if: (a) no reasonable decision maker could have made the same inferences, findings or decisions on the basis of the material before them; or (b) the decision maker adopted unwarranted assumptions or false premises that meant there was no logical connection between the evidence and their inferences, findings or decisions; or (c) there was no evident or intelligible justification for their inferences, findings or decisions: see generally DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] and the authorities cited therein.

38    In my view, the Minister’s characterisation of the applicant’s criminal history as “serious” cannot be described as unreasonable in any legal sense. This characterisation was open to the Minister. His reasons disclose clear and logical findings and inferences on the way to this characterisation. Although the applicant’s individual offences were relatively minor, non-violent and not committed against vulnerable members of the community, the cumulative effect of her offending and the fact it continued despite over 20 court appearances, numerous custodial sentences of over a year, a prior visa cancellation and a period in immigration detention, after which she began offending yet again, means that her criminal history could reasonably be characterised as “serious”.

39    Nor is there any reason to infer that the weight the Minister gave to the applicant’s criminal history was so disproportionate as to be unreasonable. As explained above, it is largely up to the Minister to determine what considerations are relevant to the individual case. In some circumstances “the seriousness of a person’s criminal history will be sufficient to satisfy the Minister that the refusal of a visa is in the national interest”: Madafferri at [86]. As noted, the Minister did not refer to matters such as the best interests of the applicant’s child and family in the national interest section of his reasons. However, it cannot be inferred from this fact alone that the Minister considered those matters irrelevant or gave them manifestly disproportionate weight. The most appropriate inference is that he considered the applicant’s criminal history and likelihood of continuing to offend serious enough that cancellation was in the national interest irrespective of the weight of countervailing matters. The absence of express reference to these matters in that part of the Minister’s reasons dealing with the national interest does not mean there was no logical connection between the evidence and his findings or that his reasons disclose no evident or intelligible justification for his findings.

40    The ultimate finding that cancellation of the applicant’s visa was in the national interest was also open to the Minister based on the applicant’s criminal history. The applicant referred to the existence of a psychological assessment report, referred to at [32] of the Tribunal’s reasons for the original decision. The report said, in summary, that despite the applicant’s criminal history meaning that she could never be assessed as at low-risk of re-offending, she was moving into a period of her life generally associated with increased desistance from crime, she had reduced her dependence on drugs, found stable housing, and had the motivation and support structures in place to limit her risk of reoffending. The applicant said the Minister overlooked this material in his national interest assessment. I am unable to agree. It cannot be inferred that the Minister overlooked this material simply because he did not refer to it in the national interest section of his reasons given that he referred to it as part of his discretionary consideration (at [56]).

41    In any event, this was an administrative decision-making process engaged in by a holder of political office. The Minister was not obliged to refer to all the relevant material available to him in his reasons or at all. The Minister was obliged to make his own inferences and arrive at a state of satisfaction or not whether cancellation was in the national interest in a non-arbitrary manner. The Minister did so in the present case by meaningfully engaging with the body of evidence, making inferences and findings logically connected to that evidence and providing evident and intelligible justifications for his conclusions. To require more would involve an impermissible exercise in reviewing the merits of the Minister’s decision.

Conclusion

42    I am unable to discern any jurisdictional error in the Minister’s decision. Accordingly, the application must be dismissed.

43    I record my thanks to Ms Phillips for providing the applicant with pro bono representation which is an important function of counsel in the public interest.

Associate

Dated:    16 November 2018