FEDERAL COURT OF AUSTRALIA

Haynes v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2144

ORDERS

THE COURT ORDERS THAT:

    The name of the Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

1    This proceeding commenced on 8 December 2016 when the applicant, Mr Haynes, filed an application in the Federal Circuit Court of Australia under s 476 of the Migration Act 1958 (Cth) (Migration Act). Mr Haynes sought review of a decision of the then Assistant Minister for Immigration and Border Protection (the Minister) under s 501CA of the Migration Act not to exercise his discretion to revoke a mandatory cancellation of Mr Haynes’ Class BF Transitional (permanent) visa under s 501(3A) (visa).

2    On 15 December 2016, the learned primary Judge ordered that the application for review be transferred to the Federal Court of Australia pursuant to s 39 of the Federal Circuit Court of Australia Act 1999 (Cth) – it is this application which is now before the Court.

Background

3    The applicant is a national of the Netherlands, and is currently 37 years old. He first arrived in Australia on 19 April 1985, aged three years. His most recent visa was a Class BF Transitional (Permanent) visa.

4    On 17 August 2015, the applicant was convicted in the District Court of Queensland of the offence of a producing a dangerous drug, having been found in possession of 582 tablets of MDA. He was sentenced to two and half years imprisonment, with a release date on parole being 17 February 2016.

5    On 2 February 2016 the applicant’s visa was cancelled under s 501 (3A) of the Migration Act (visa cancellation decision). He was notified of the visa cancellation decision by letter dated 25 February 2016.

6    Section 501 (3A) of the Migration Act provides:

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

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

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

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

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

7     Materially, the letter of 25 February 2016 stated:

Failure to pass the character test

Based on the information before the Department, the decision maker (who is a delegate of the Minister) was satisfied that you do not pass the character test on the following ground:

You have a substantial criminal record within the meaning of s 501(6)(a) on the basis of s 501(7)(a), (b) or (c) of the Act. Under s 501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. On 17 August 2015 you were convicted of Produce Dangerous Drug – Schedule 2 Drug and sentenced to two years and six months imprisonment.

…

Imprisonment on a full-time basis

Based on the information available, the decision maker was also satisfied that, at the time of the decision, you were serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory….

8    It is not controversial that the visa cancellation decision was valid.

9    The applicant applied for revocation of the visa cancellation decision on 24 February 2016 seeking revocation of the visa cancellation decision pursuant to s 501CA(4)(a) of the Migration Act.

10    On 8 November 2016, the Minister made a decision under s 501CA of the Migration Act not to exercise his discretion to revoke the visa cancellation decision (revocation decision). The Minister provided a statement of reasons for this decision on the same date.

Revocation decision

11    In determining whether to revoke the visa cancellation decision, the Minister had regard to s 501CA of the Migration Act which provides as follows:

Cancellation of visa--revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

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

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

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

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

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

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

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

(ii) particulars of the relevant information; and

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

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

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

(b) the Minister is satisfied:

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

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

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

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

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

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

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

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

Note: For notification of decisions under subsection (4) to not revoke, see section 501G.

12    In his reasons the Minister noted that the applicant had been convicted and sentenced to prison, such that he had a “substantial criminal record” within the meaning of s 501(7)(c) of the Migration Act. The Minister had regard to the sentencing remarks of 17 August 2015 and the applicant’s National Police Certificate dated 5 February 2016, and noted further that the applicant did not dispute the information set out therein.

13    Accordingly the Minister stated that he was not satisfied that applicant passed the character test (as defined by s 501), with the result that s 501CA(4)(b)(i) was not met.

14    The Minister then turned to the question whether there was another reason warranting the original decision to be revoked under s 501CA(4)(b)(ii). The Minister said:

12.    In the representations and documents submitted by or on his behalf, Mr HAYNES has articulated reasons why the original decision should be revoked, which include: the best interests of his two minor Australian citizen children; his family and community ties to Australia including employment; minimal ongoing links to the Netherlands and inability to speak the local language; his remorse and progress toward rehabilitation; and the financial and practical hardship he and his immediate family would suffer upon his return to the Netherlands where he has no social or family networks.

15    The Minister noted that the applicant had two minor children who were Australian citizens, and the applicant’s contention that prior to his incarceration he had been actively involved in their parenting. The Minister noted that the applicant had separated from the mother of his children, however accepted that the applicant had played a parental role in the lives of his children. The Minister noted further that he had had daily telephone contact with his children while in immigration detention, and that the children were distressed at the prospect of the applicant being deported.

16    The Minister also noted that both children had learning difficulties and without the applicant’s financial support, they would likely be unable to raise the resources to meet their educational needs. The Minister stated:

20. I find it in the best interests of his two children that that [sic] I revoke the visa cancellation decision to enable him to have a parental relationship with them that includes personal contact and financial support. I consider this particularly important given the special education needs of his children.

17    The Minister also gave consideration to the fact that the applicant had five cousins and nieces or nephews, and found that it was in the best interests of any minor relatives that the visa cancellation decision be revoked to enable to applicant to maintain a relationship with them. The Minister gave less weight these relatives because there was no evidence that the applicant has a parental role in their lives.

18    The Minister found that the applicant had strong family, employment and societal ties to Australia, noting that his partner is an Australian citizen, as well as his mother, father, siblings and children.

19    The Minister considered the effect of the non-revocation upon the applicant’s immediate family in Australia, in particular his children and partner. At [27] the Minister noted the statement of the applicant’s partner that she was emotionally, psychologically and financially dependent on the applicant. The Minister accepted they would experience emotional and practical hardship as a result of physical separation from him.

20    The Minister at [29] noted that the applicant had had employment between 2009 and 2016, and accepted that he had an offer of employment pending his release from immigration detention.

21    The Minister accepted at [30] that the applicant’s immediate family would experience emotional and practical hardship as a result of physical separation from him.

22    The Minister had regard to the impediments the applicant would face in establishing himself in the Netherlands, noting in particular the applicant’s inability to speak, read or write Dutch and the absence of real ties to the Netherlands. The Minister accepted that these impediments could cause the applicant significant hardship in establishing himself in the Netherlands.

23    The Minister also had regard to the consideration of the protection of the Australian community, noting in particular the applicant’s claim that he was rehabilitated. The Minister considered the government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens.

24    The Minister considered the criminal conduct of the applicant, noting the seriousness and nature of the applicant’s criminal offences. The Minister found that the sentence received by the applicant indicated the seriousness of the offences and agreed with the sentencing remarks by the Judge.

25    In paragraph [44] the Minister set out previous offences in the applicant’s criminal history:

    27 June 2008, Producing dangerous drugs, Possessing dangerous drugs, Possessing anything used in the commission of crime, Possess utensils or pipes etc, convicted with bond to be of good behaviour for 18 months, perform community service 180 hours

    9 May 2008, Drunk or disorderly in premises to which a permit/licence, without conviction, no penalty imposed

    1 June 2005, Receiving, Attempted to dishonestly obtain property from another, fined $600 without conviction

    19 December 2000, Unlawful possession of weapons whilst not being the holder of a licence, convicted and fined $150

    19 December 2000, Possessing dangerous drugs, Possessing utensils or pipes etc, convicted and fined $550

    7 July 2000, Possessing dangerous drugs, fined $350 without conviction

    5 May 2000, Possessing dangerous drugs, Possessing utensils or pipes etc, fined $350 without conviction

26    The Minister concluded:

45.     Having regard to Mr HAYNES’ criminal history in Australia, and the remarks and dispositions of the courts, [sic] I formed the view that Mr HAYNES’ overall criminal history is serious. In particular, I have considered his conviction for producing dangerous drugs for which he was sentenced to two years and six months imprisonment. I find this recidivism increases the seriousness of Mr HAYNES’ offending.

46.    I conclude that Mr HAYNES’ overall criminal conduct is serious and not in line with community values.

27    In considering whether the applicant was a risk to the Australian community, the Minister observed that cannabis use was a major contributor to his offending, and that he had abstained from illicit drug use since May 2015, whilst also disassociating himself from persons of poor character.

28    The Minister accepted that the applicant’s general behaviour in prison and immigration detention had been satisfactory; that his time in prison had given him an opportunity to reflect on his behaviour; that he had engaged in drug programmes whilst in detention; and that he had employment arranged for after he was released. The Minister further acknowledged that the applicant had displayed insight and had good intentions to live a law-abiding lifestyle in the future, and had expressed contrition.

29    The Minister gave weight to the significant support the applicant had from his family; the availability of employment upon release from prison; his participation in drug programmes; and his intention to seek counselling for his substance abuse issues should he return to the community. However the Minister continued:

58.    ….Notwithstanding these factors, I find that Mr HAYNES rehabilitation is yet to be tested in the community and there remains some likelihood that he may reoffend. In relation to Mr HAYNES’ risk of recidivism, I have considered his lack of respect for Australian laws. In particular, I note Mr HAYES has reoffended after being given prior opportunities by the courts to correct his behaviour and avoid further punishment.

59.    I consider that Mr HAYNES’ ability to refrain from re-offending relates, mostly, to his ability to avoid illicit drug use. In light of the above, I find there remains a likelihood that he may re-offend.

60.    If Mr HAYNES did engage in further criminal conduct of a similar nature, that being production of a dangerous drug, it could result in conduct that could cause harm to the Australian community, given the widespread harm drugs cause to individuals and community resources in terms of policing, health and judicial costs.

30    The Minister concluded:

61.    I considered all relevant matters including (1) an assessment of whether the person has made representations in accordance with the invitation for the purposes of s501CA(4)(a); (2) an assessment of whether I am satisfied that the person passes the character test (as defined by section 501) for the purposes of s501CA(4)(b)(i); (3) an assessment of whether I am satisfied that there is another reason why the original decision should be revoked for the purposes of s501CA (4)(b)(ii); and (4) all evidence available to me, including evidence provided by, or on behalf of, Mr HAYNES.

62.    I concluded Mr HAYNES has made representations in accordance with the invitation.

63.    I am not satisfied that Mr HAYNES passes the character test (as defined by section 501).

64.    In considering whether, in light of Mr HAYNES’ representations, I was satisfied that there is another reason why the original cancellation decision should be revoked, I gave primary consideration to the best interests of Mr HAYNES’ children, Jeremy and Liam, and have found that their best interests would be best served by the revocation of the mandatory visa cancellation decision.

65.    In addition, I have considered the length of time, some six years during which Mr HAYNES has made a positive contribution to the Australian community via employment and the payment of taxes and the consequences of my decision for his other family members. In this regard I note his relationship with his defacto partner Ms Seeto, immediate members of his family and other extended family members.

66.    On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the serious nature of the crimes committed by Mr HAYNES, which include that of Produce dangerous drug. I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia.

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

68.    I am cognisant that where great harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the decision to cancel the visa. This is so even when applying a higher tolerance of criminal conduct by Mr HAYNES than I otherwise would, because he has lived in Australia for most of his life, including a period as a young child.

69.    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 HAYNES represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children as a primary consideration, and any other considerations as described above. These include his length of residence in Australia and familial bonds, and the hardship Mr HAYNES and his family will endure in the event the original decision is not revoked.

70.    Having given full consideration to all of these matters, I am not satisfied, for the purposes s501CA(4)(b)(ii), that there is another reason why the original decision to cancel Mr HAYNES visa should be revoked. Accordingly, I have decided not to revoke the original decision to cancel Mr HAYNES’ Class BF Transitional (Permanent) visa.

Originating application

31    The Originating Application filed in the Federal Circuit Court of Australia on 8 December 2016 set out the following grounds for review:

In making a decision pursuant to the Migration Act the Respondent decision maker engaged in jurisdictional error. Specifically, the Respondent:

1.    Made a decision that was illogical, irrational and unreasonable. The particulars, include but are not limited to:

a.    Failing to accord sufficient consideration to the rights and interests of the applicants family, including the rights of children;

b.    Failing to afford proper weight to the applicant’s interests in being deported to the Netherlands;

c.    Failure to rationally consider and apply the impact of hardship and its effect upon the applicant, his children and family;

d.     Failure to consider a rational and reasonable approach to rehabilitation;

e.    Failure to consider a rational and reasonable approach or comparative approach to criminal conduct and offending within the Australian community;

f.    Acted unreasonably in finding that the Applicant was an unreasonable risk to the Australian community; and

g.    Failure to properly consider the overall circumstances in a rational, logical and reasonable manner.

2.    Acted outside of the jurisdiction of the Migration Act in making a decision that was punitive in character.

32    At the hearing in the Federal Court, Counsel for Mr Haynes informed the Court that Mr Haynes was not pressing the second ground of his application. Accordingly, I will consider only the first ground of the application.

in the federal court

33    In summary, the applicant submitted:

    The decision of the Minister was unreasonable in that its outcome was so divorced from any rational and reasonable basis that it could not justifiably be said to be derived from the circumstances, or alternatively lacked an intelligible justification, being plainly unjust, arbitrary, capricious, and lacking common sense.

    While the Minister listed and claimed to have considered all the relevant factors, he ignored their significance and made an arbitrary or plainly irrational or unjust decision.

    The Minister did not consider that if released, the applicant will be subject to strict parole conditions which lower the risk of him reoffending and that he has been drug free whilst incarcerated.

    The Minister mischaracterised the applicant’s conduct whilst in detention, including ‘downplaying’ his behaviour. By labelling the applicant’s conduct while in detention as merely ‘satisfactory’, the Minister found the applicant to have disregard for the law and be a recidivist offender.

    The Minister came to the view that the applicant was a ‘recidivist offender’ without any intelligent or logical reasoning. This was a crucial finding because it overrode all the other mitigating factors to justify revoking the cancellation of the visa

    The reasons justifying the revocation of the visa cancellation decision were overwhelming.

    The applicant has been rehabilitated and there is no evidence to suggest otherwise as he has completed course supporting his rehabilitation.

    The Minister did not give consideration to the range of drug production offences, to the fact that the applicant was co-offender and that the production was only approximately worth $10,000, and that the offending was at the lower end for such offences.

    Despite the applicant proving he had demonstrated remorse for his actions, that he had abstained from illicit drug use and he had taken all steps possible, the Minister still took the view that he is a risk to the Australian community – even though it will deprive his children of a father.

    The Minister gave no practical weight to his life and connection to Australia since he was 3 years old. The applicant submits that there is no ‘evident or intelligible basis’ for the Minister to conclude that he has positively contributed to the Australian community for only 6 years.

34    The Minister submitted in summary:

    The Minister made a considered and evaluative decision, weighing a number of factors for, and against, non-revocation.

    Ultimately, after weighing all factors, the Minister attributed more weight to the protection of the Australian community than to the other factors in the applicant’s favour. This conclusion was based upon the criminal background of the applicant, having committed serious offences that could come at a considerable cost the community if they were repeated.

    The Minister did not disregard the matters on which the applicant relied.

    The applicant primarily cavils with the sufficiency of the Minister’s justification. The matters the Minister took into account were, however, largely a matter for the Minister.

35    The parties also filed supplementary submissions referable to the decision of the Full Court in Minister for Home Affairs v Ogawa [2019] FCAFC 98. The applicant submitted, in summary:

    Like in Ogawa, the Minister in the present case made a broad assertion that he had considered all information, but in fact did not refer to relevant information, and did not consider it;

    In this case for an individual whose only memories are of being Australian having been here since he was 3 years old, the Minister stated that he had only some 6 years of positive contribution to society;

    What is not ever addressed is Mr Haynes’ letter and his statement and the fact that he is, in all relevant respects in so far as his upbringing and memories, an Australian; and

    Mr Hayne’s personal circumstance and his personal handwritten submission to the Minister setting out his tie to Australia was a representation that was required to be considered. The Minister did not take this representation into account, nor did he consider it.

36    The Minister submits that Ogawa is distinguishable in that:

    There were significant factual differences between this case and Ogawa; and

    The majority of the Full Court in Ogawa concluded that evidence had been overlooked in that case.

37    The Minister further submitted that:

    The only reference by the applicant to the possibility that evidence was overlooked in the present case, was to a one line statement in his submissions to the Minister of 26 February 2016 in the following terms: “Cas considers himself to be Australian and considers Australia to be his home”;

    This one line in the submissions was not a mandatory relevant consideration, such that failure by the Minister to have regard to it would amount to jurisdictional error;

    In any event, the applicant has not discharged his onus of establishing that the Minister failed to have regard to this one line. The Minister's reasons show that he extensively engaged with the contents of the 26 February 2016 submission and considered the more objectively pertinent and prominent submissions/representations made by the applicant concerning the age he arrived in Australia and the duration of his residence here; and

    Even if the Court were to consider the Minister's reasons to be inadequate or lacking in terms of supporting a finding made (which is denied), that would not - of itself - mean that the decision was unreasonable, provided that the finding was one that was reasonably open on the evidence.

consideration

38    It is helpful to examine each of the sub-grounds in the first ground of review.

39    Sub-grounds (a) and (b) both allege a failure of the Minister to give sufficient consideration (sub-ground (a)) or weight (sub-ground (b)) to factual matters: namely, the rights and interests of the applicant’s family in relation to sub-ground (a) and the applicant’s interests in being deported to the Netherlands. The weight accorded by the Minister (or any finder of fact) is a matter for the Minister. As the Full Court recently observed in Minister for Immigration and Border Protection v Gill [2019] FCAFC 9:

53.    It should be emphasised again that the use to which anonymous information may be put will depend in all cases on the statutory context and upon the body of the information before a decision-maker. In the circumstances of Mr Gill’s case, the weight to be ascribed to the anonymous information was a question in respect of which reasonable minds may differ. To make out the ground of review of legal unreasonableness, it is not sufficient to express emphatic disagreement with the weight ascribed by the Tribunal: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [34], [37] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). Nor is it permissible for a court on review to substitute its own view as to the appropriate weight for that expressed by the decision-maker.

(Emphasis added.)

40    In my view, these sub-grounds of review seek to agitate impermissible merits review.

41    In sub-ground (c) Mr Haynes claims that the Minister has failed to rationally consider and apply the impact of hardship and its effect on the applicant and his family members.

42    Recently in DOU16 v Minister for Home Affairs [2019] FCAFC 212 the Full Court said:

40.    The appellants accepted that the threshold for a finding of legal unreasonableness is high, and that for this ground to be made out they must establish that no rational decision-maker could have reached the decision, or made a finding on the way to the decision, on the same material: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130] per Crennan and Bell JJ. The appellants accepted that the inquiry as to legal unreasonableness is fact intensive and that fixed formulae and reliance on analogous cases is unlikely to be helpful. As the Full Court said in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at 172 [65]:

... the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.

43    In this case, the consideration of the Minister in evaluating the impact of hardship and its effect upon the applicant and his family was not irrational. The Minister addressed in detail the best interests of the applicant’s children, and noted the serious effect Mr Haynes’ incarceration had had on the emotional state of his children (in particular his elder son), as well as the likely significant consequences his deportation would have on the financial stability of the children. The Minister acknowledged that it would be in the best interests of Mr Haynes’ children if the visa cancellation decision were to be revoked. The Minister also considered the emotional and practical hardships, which Mr Haynes’ present partner and the mother of his children would suffer if he were deported. However, ultimately the Minister concluded that other interests, in particular the interests of protecting the Australian community, were of greater weight than the interests of Mr Haynes’ family members.

44    In my view sub-ground (c) has no merit.

45    In relation to sub-ground (d) the applicant submits that he has been rehabilitated, there is no evidence or indication of anything other than rehabilitation, and he has completed courses supporting his rehabilitation.

46    The Minister had regard to Mr Haynes’ submissions concerning his participation in drug programmes and his intention to seek counselling for substance abuse issues should he return to the community, however the Minister found that Mr Haynes’ rehabilitation was yet to be tested in the community and there remained some likelihood that he may reoffend (at [58]). The Minister also considered Mr Haynes “lack of respect for Australian laws” (at [58]), and in particular noted that Mr Haynes had reoffended after being given prior opportunities to correct his behaviour and avoid further punishment. At [59] the Minister concluded that Mr Haynes’ ability to refrain from re-offending related, mostly, to his ability to avoid illicit drug use, and there remained a likelihood that Mr Haynes would reoffend. The Minister had also formed the view that Mr Haynes had a history of recidivism in light of his criminal record (at [46]).

47    In my view, the Minister has adopted a rational and reasonable approach to the issue of Mr Haynes’ rehabilitation. In my view sub-ground (d) lacks merit.

48    In relation to sub-ground (e) the applicant asserts that the Minister failed to give any consideration to the range of drug production offences or Mr Haynes’ role in the endeavour, including that he was a co-offender and the production was in the amount of only approximately $10,000. It was also apparent from the decision of the trial judge in respect of Mr Haynes’ criminal conviction that the Court did not consider that the offending was at the highest level of offending for such offences.

49    I am not persuaded that the Minister failed to have regard to these issues as alleged by the applicant. At [40] the Minister noted that Mr Haynes had a co-offender in relation to his offence. Further, at [41]-[43] the Minister noted the offence for which Mr Haynes had been convicted; his sentence following that conviction; the Minister’s view that the sentence was further indication of the seriousness of the offending; the comments of the trial judge during sentencing including that Mr Haynes became “a party” to the offending; and the Minister’s finding in light of those comments that Mr Haynes’ offending was serious. It is unclear why the fact that Mr Haynes was a co-offender means that his offending was less serious than it otherwise would have been. Further, while Mr Haynes downplayed the monetary value of the drugs he produced, this insouciance was not shared by the trial judge who – as the Minister noted – referred to Mr Haynes’ offending as “sinister” and also noted that his actions put more harmful drugs into the community “already choking with illicit drugs”.

50    In my sub-ground (e) has no merit.

51    In relation to sub-ground (f) the applicant appears to rely on his contention that he has “a very minor criminal history”, that his conduct in custody and in detention has been good, and he has demonstrated remorse for his behaviour. However, the Minister’s conclusion that Mr Haynes posed an unreasonable risk to the Australian community was formed in light of the Minister’s view that there was some likelihood that Mr Haynes would reoffend. The Minister formed this view because Mr Haynes had a history of recidivism and his criminal conduct was connected to his drug use. The Minister also formed the view that if Mr Haynes engaged in further criminal conduct of a similar nature, it could cause harm to the Australian community given the widespread harm drugs cause to individuals and community resources in terms of policing, health and judicial costs (at [58]).

52    Mr Haynes submits that the Minister failed to have regard, in this context, to the fact that he was granted a six-month parole release date – itself reflective of the actual scale of offending – or to the appropriate sentencing range. I am not persuaded that the absence of reference by the Minister to these issues is indicative of either failure to take them into consideration, so far as the Minister was required to do so, or unreasonableness on the part of the Minister in reaching his decision. Mr Haynes was convicted of an offence described by the trial judge as serious, a view with which the Minister concurred, and sentenced to two and a half years prison. The Minister noted the damage to the community caused by drug related offences of the type in respect of which Mr Haynes was convicted, and the likelihood in the Minister’s view that Mr Haynes would reoffend.

53    This view that Mr Haynes was a risk to the Australian community was open to the Minister.

54    Sub-ground (g) encapsulates contentions of Mr Haynes relating to a number of matters, including:

    The alleged failure of the Minister to have regard to Mr Haynes’s residence in Australia since the age of three, to the fact that Mr Haynes has never left Australia, and to the fact that Mr Haynes considers Australia his home;

    The fact that Mr Haynes would be forced to move to a different country, climate and culture where he did not speak the language;

    Although Mr Haynes had done all that he could possibly do to demonstrate remorse and rehabilitation, the Minister expected Mr Haynes to do “the impossible” to satisfy the Minister that Mr Haynes would never be a risk to the Australian community;

    There is no basis on which the Minister could form the view that Mr Haynes had made only 6 years of positive contribution to Australia since the age of three; and

    The decision demonstrates that the Minister acted with a clear intent not to revoke and to disregard positive factors favouring revocation.

55    In relation to these issues:

    The Minister did have regard to the length of time that Mr Haynes had been in Australia and that he was acculturated to Australia. At [23] the Minister recognised that Mr Haynes had been in Australia since he was three years old and had never departed, and took into account that in such circumstances, the Australian community may afford Mr Haynes a higher tolerance of criminal conduct.

    The Minister took into account the hardship Mr Haynes could face in moving to the Netherlands.

    I am not persuaded that Mr Haynes was required to “do the impossible” to satisfy the Minister that he would not be a risk to the Australian community. The Minister took into account Mr Haynes’ conduct in prison and in detention, and his contrition, however considered there was some likelihood that Mr Haynes would reoffend and that if he did so, he would cause harm to the Australian community. The Minister explained the basis on which he concluded that Mr Haynes was a recidivist risk, including by reference to his criminal history, previous drug use, and untested claims of Mr Haynes’ rehabilitation.

    The reference to six years of positive contribution by Mr Haynes was expanded at [29] and [65] by reference to Mr Haynes’ employment and payment of taxes. I further understand that this period of time fell between Mr Haynes’ conviction in June 2008 for producing dangerous drugs, and his conviction and custodial sentence in 2015. The Minister refers to Mr Haynes’ employment between 2009 and 2016. There is no reference to employment prior to 2009. The Minister referred however to numerous offences committed by Mr Haynes between 2000 and 2008, including drug related offences.

    I am not satisfied from the material before me that the Minister approached his task with preconceptions, including disregarding positive factors favouring revocation.

conclusion

56    Repatriating Mr Haynes to the Netherlands in the circumstances described by the Minister could properly be described as a harsh decision. Mr Haynes has lived in Australia all of his life, since he was three years old. He is now 37 years old. His character has been entirely shaped by his life in this country, and he is Australian in everything but his citizenship. However the proceedings before me do not involve merits review. The decision of the Minister was made within jurisdiction.

57    The application should be dismissed with costs.

Associate:

Dated:    19 December 2019