FEDERAL COURT OF AUSTRALIA

Sabado v Minister for Home Affairs [2020] FCA 458

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application be dismissed.

2.    The applicant pay the respondent’s costs.

3.    Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), and r 1.32 and r 1.36 of the Federal Court Rules 2011 (Cth), these orders and the reasons for judgment in support of these orders are made and published from Chambers.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    This is yet another case which reveals the uncompromising and, some might say, harsh and unforgiving approach taken to the cancellation of visas held by long-standing Australian residents, but non-citizens, who commit offences while in Australia.

2    The applicant in this proceeding, Mr Eliezer Magtoto Sabado, had his visa mandatorily cancelled pursuant to subs 501(3A) of the Migration Act 1958 (Cth). The respondent, the Minister for Home Affairs, declined to revoke the cancellation of Mr Sabado’s visa in the exercise of his discretion pursuant to subs 501CA(4) of the Act. The Minister was not satisfied that Mr Sabado passed the “character test” (subs 501CA(4)(b)(i)) or that there was “another reason” why the cancellation should be revoked (subs 501CA(4)(b)(ii)). The main issue in this proceeding is whether the Minister exercised his discretion under subs 501CA(4) of the Act according to law.

Background

3    Mr Sabado is a citizen of Canada. He came to Australia in 1997 with his parents when he was 18 years old. He has lived in Australia since that time pursuant to various visas which permitted him to reside here. In 2006, he was granted a Class BB Subclass 155 Five Year Resident Return visa.

4    On 2 February 2011, Mr Sabado was convicted in the District Court of New South Wales of seven offences involving sexual intercourse, indecent assault and inciting the commitment of an indecent act on a child under the age of 10 years. The court was also requested to take into account three additional offences of inciting aggravated indecency on a victim under 16 who was under his authority. Mr Sabado was sentenced to a total effective sentence of imprisonment of eight years and three months, with a non-parole period of five years and six months. There could be no doubt that the offences were very serious and were regarded as such by the sentencing judge.

5    On 3 June 2016, Mr Sabado’s visa was cancelled pursuant to subs 501(3A) of the Act. A delegate of the Minister was satisfied that he did not pass the “character test” under subs 501(6)(a) of the Act because he had a substantial criminal record and was serving a full-time sentence of imprisonment. The cancellation of Mr Sabado’s visa necessarily followed from those findings.

6    Mr Sabado was invited to, and subsequently did, make submissions to the Minister as to why the cancellation of his visa should be revoked. The Minister, however, declined to revoke the cancellation. Mr Sabado successfully challenged that decision in proceedings commenced in this Court: the decision was quashed and the Minister was ordered to re-determine according to law Mr Sabado’s application to revoke the cancellation of his visa: Sabado v Minister for Home Affairs [2019] FCA 26.

The Minister’s decision

7    On 14 October 2019, the Minister again declined to revoke the cancellation of Mr Sabado’s visa in the exercise of his discretion under subs 501CA(4) of the Act. It is that decision which is the subject-matter of this proceeding.

8    If, as was plainly the case here, Mr Sabado did not pass the “character test”, the Minister was only able to exercise his discretion to revoke the visa cancellation if he was satisfied that there was another reason why the cancellation decision should be revoked: subs 501CA(4)(b)(ii) of the Act. Unfortunately for Mr Sabado, the Minister was not so satisfied.

9    The Minister’s Statement of Reasons indicates that, in considering whether there was another reason to revoke the cancellation of Mr Sabado’s visa, the Minister took into account the strength, nature and duration of Mr Sabado’s ties to Australia (Reasons at [13]-[30]), the impediments that Mr Sabado will face if “removed” to Canada (Reasons at [31]-[39]), and the length of time that Mr Sabado had made a positive contribution to the Australian community (Reasons at [85]). Each of those considerations was found to weigh in favour of the revocation of the cancellation of Mr Sabado’s visa.

10    The difficulty for Mr Sabado, however, was that the Minister considered that he represented an unacceptable risk to the Australian community. According to the Minister, that consideration outweighed all the other considerations. The Minister’s reasoning in that regard was as follows (Reasons at [86]-[89]):

86.    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 very serious nature of the crimes committed by Mr SABADO, that are of a sexual nature, and involved a vulnerable member of the community, that being a minor.

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

88.    I am cognisant that where significant 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 SABADO then I otherwise would, because he has lived in Australia for most of his life, or from a very young age.

89.    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 SABADO represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed his lengthy residence and ties, employment and familial to Australia, and the hardship Mr SABADO, his family and social networks will endure in the event the original decision is not revoked.

11    The Minister’s finding at paragraph 87 of the Reasons that he could not rule out the possibility of further offending by Mr Sabado must be considered in light of the Minister’s reasoning and findings at paragraphs 52 to 81 of the Reasons concerning the risk to the Australian community posed by the risk that Mr Sabado may re-offend. Much of the material that was before the Minister in relation to Mr Sabado’s prospects of rehabilitation was highly favourable.

12    As the Minister noted (Reasons at [57]), the sentencing judge found that Mr Sabado was “truly remorseful and contrite, highly unlikely to re-offend and has good prospects for rehabilitation”. While in custody, Mr Sabado had voluntarily attended and satisfactorily completed a 12 month “therapeutic sex offender program” which was “aimed at addressing the risk factors associated with his sexual offending”: Reasons at [63]. He also attended and completed a number of other vocational, therapeutic and spiritual courses. This was noted by the Minister at paragraphs 68 to 72 of the Reasons. Numerous highly favourable and positive character testimonials and letters of support concerning Mr Sabado were put before the Minister. Most of them attested to the fact that Mr Sabado was truly remorseful and had changed and rehabilitated. Those testimonials and letters of support were briefly noted by the Minister at paragraphs 75 to 78 of the Reasons.

13    Despite all the positive material concerning the prospects of Mr Sabado’s rehabilitation, the Minister concluded (at [79]-[81]) as follows:

79.    Notwithstanding Mr SABADO’s remorse, the support he has from family and friends in Australia and other relevant matters, I also note his intentions to be a law-abiding citizen, and any rehabilitative efforts, have not been tested in the community in an unsupervised capacity. I therefore cannot rule out further offending by Mr SABADO and find that there remains a risk that Mr SABADO will reoffend, albeit a low risk.

80.    Mr SABADO will be placed on the Sex Offender register for life, and although this provides some protection to the community, it does not prevent future offending.

81.    Mr SABADO’s sexual offending, involving a young child, has caused immense harm to both the victim and her family. Should he re-offend again in the future with further sexual offences against a young child, it could result in significant harm for the community. Further such offending could cause physical, psychological, emotional and/or other harm to young persons within the Australian community. I find that the harm to these vulnerable victims would clearly be significant.

14    The Minister’s finding that “there remains a risk that Mr Sabado will reoffend, albeit a low risk” appears to have been almost entirely based on the conclusion in a detailed report prepared by a psychologist retained by New South Wales Corrective Services who had been involved in the sex offender therapeutic program in which Mr Sabado had participated while in custody. The conclusion of that report placed Mr Sabado in the “moderate-low risk category compared to other male sexual offenders”. The author of the report also noted certain “risk factors” and stated that “[i]n order for Mr Sabado’s risk of recidivism to be managed effectively (if released to Australia) he will need to continue to address [those] factors”.

15    Counsel for the Minister in this proceeding submitted that, in addition to the psychologist’s findings, the Minister had “expressly identified” four “factors” that had led him to conclude that there remained a risk that Mr Sabado would re-offend. First, the Minister had regard to Mr Sabado’s failure to come forward to the police after his offending which “detracts somewhat from the sincerity of his remorse”: Reasons at [58]. Second, the Minister reasoned that while Mr Sabado had the continuing support of his previous employer, his “previous employment did little to dissuade his past offending”: Reasons at [74]. Third, the Minister noted that while Mr Sabado had the continuing support of his family and that “this is a protective factor against further offending”, he considered that nevertheless “Mr Sabado’s family was present during the period of his offending”: Reasons at [78]. Fourth, the Minister found that Mr Sabado’s “rehabilitative efforts” had not been “tested in the community in an unsupervised capacity”: Reasons at [79].

16    These “factors” identified by the Minister, when closely analysed, in fact provided little or no real support for the finding that there was a risk that Mr Sabado would re-offend. Rather, they were, at best, reasons for discounting or giving less weight to factors that would otherwise positively support the proposition that there was no appreciable risk of Mr Sabado re-offending.

17    The reasoning employed by the Minister in relation to these factors is also, to say the very least, less than persuasive. While it is true that Mr Sabado did not “come forward” before the victim reported his offending to the police, it is difficult to see how that fact could genuinely detract from the proposition that he had demonstrated genuine remorse and contrition, as the sentencing judge had found. The fact that Mr Sabado was employed at the time of the offences said little about the positive effect that secure employment in the future would have on the prospects of rehabilitation. The reasoning concerning the continuing support of Mr Sabado’s family is even less persuasive. There was nothing whatsoever to suggest that Mr Sabado’s family was aware of his offending when it was occurring. In those circumstances, it borders on the absurd to suggest that the fact that his family was “present” during his offending could discount in any way the “protective” effect that the support of his family would have in the future in terms of the risk of re-offending.

18    The fourth factor, that Mr Sabado’s rehabilitation had not been tested in the community, is discussed in more detail later in these reasons.

Grounds of review

19    In his originating application and affidavit, Mr Sabado advanced five grounds in support of his challenge to the lawfulness of the Minister’s decision. Each of those grounds, in one way or another, challenged the Minister’s reasons for finding that he could not rule out the possibility of further offending by Mr Sabado. Mr Sabado also raised a new ground in his oral submissions at the hearing.

20    Mr Sabado had also sought interlocutory relief that he be referred for pro bono legal assistance. In his affidavit, Mr Sabado (at [5]) detailed his numerous, but ultimately unsuccessful, attempts to obtain legal representation. I accordingly made an order that he be referred for pro bono legal assistance. Most regrettably, no counsel accepted the referral. I consequently made orders that Mr Sabado appear at the hearing via video link from this Court in Perth, Western Australia.

Ground 1 – Unreasonable or illogical finding at paragraph 57 of the Reasons

21    Mr Sabado contended that the Minister’s finding at paragraph 57 of the Reasons was unreasonable and illogical. The finding at paragraph 57 was as follows:

The Judge noted that Mr SABADO has taken steps to rehabilitate himself and has been making favourable progress towards psychological rehabilitation. The Judge stated that she found that Mr SABADO is truly remorseful and contrite, highly unlikely to re-offend and has good prospects for rehabilitation.

22    As can be seen, this was essentially a finding in Mr Sabado’s favour. It was also a finding which was clearly supported by the sentencing remarks of the District Court judge. There could be no doubt that it was open to the Minister to have regard to what the judge had said about Mr Sabado’s prospects of rehabilitation.

23    It may perhaps be inferred that Mr Sabado’s real complaint was that the Minister’s finding (Reasons at [79] and [87]) that he could not rule out the possibility of further offending by Mr Sabado could not be reconciled with the finding at paragraph 57 of the Reasons. It was, in other words, the Minister’s finding at paragraphs 79 and 87 concerning the risk that Mr Sabado would re-offend which Mr Sabado contended was unreasonable or illogical.

24    Mr Sabado’s oral submissions in effect confirmed that his challenge was directed primarily at the Minister’s finding that there remained a risk, albeit a low risk, that he might re-offend. Mr Sabado submitted that the Minister’s finding that there was a risk that he would re-offend was not supported by the evidence and that the Minister had effectively ignored or failed to have regard to the evidence that was before him. Mr Sabado’s submissions focussed, in particular, on the Minister’s finding at paragraph 79 of the Reasons that his “intentions to be a law-abiding citizen, and any rehabilitative efforts, have not been tested in the community in an unsupervised capacity”.

25    Mr Sabado submitted that, in making that finding, the Minister must have failed to have regard to two items of evidence that were before him which showed that he had in fact been in the community for a period of time: first, Mr Sabado’s written submission to the Minister noted that he was on bail, and therefore in the community, between February and December 2010; and second, an “excursion record” which recorded that the Australian Border Force approved “excursion[s] to the community” by Mr Sabado during the period 23 May to 29 July 2018. While it is not clear from the document itself, Mr Sabado indicated that those excursions were supervised excursions he went on while he was in immigration detention on Christmas Island.

26    Mr Sabado also drew attention to the fact that, to the extent that it could be said that his rehabilitative efforts had not been “tested in the community in an unsupervised capacity”, that was almost entirely as a result of the Minister’s actions. His visa was cancelled when he was still serving his period of imprisonment, which meant that upon his release he was immediately taken into immigration detention.

27    It may be accepted that an administrative decision which is based on illogical or irrational reasoning or findings may be legally unreasonable and therefore not lawfully made within jurisdiction: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [129]-[131] (Crennan and Bell JJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [72] (Hayne, Kiefel and Bell JJ); Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81; FCAFC 200 at [35].

28    What is clear, however, is that illogicality or irrationality in this context must mean something more than emphatic disagreement with the reasoning or findings: SZMDS at [129]. If “probative evidence can give rise to different processes or reasoning and if logical or rational or reasonable minds might differ in respect of the conclusion to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion”: SZMDS at [131].

29    For an administrative decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must generally be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; FCA 317 at [148]. The “critical question” whether an administrative decision is irrational, illogical and not based on findings or inferences of facts supported by logical grounds, “should not receive an affirmative answer that is lightly given”: SZMDS at [40] (per Gummow ACJ and Kiefel J).

30    With those principles in mind, can it be said that the Minister’s finding that there “remains a risk that Mr Sabado will reoffend, albeit a low risk” is illogical, irrational or unreasonable? As unpersuasive as some aspects of the reasoning may be, it cannot be concluded that the finding was not reasonably open to the Minister on the material that was before him. It may readily be concluded that reasonable minds might have come to different conclusions on the basis of that material, though that is essentially beside the point.

31    There are two difficulties for Mr Sabado’s argument that the finding was illogical, irrational or unreasonable. The first difficulty is that, as a simple matter of logic, it is difficult to conceive of many circumstances where it could be positively concluded that there was no risk that a person who had been convicted of a serious offence might re-offend. The Minister’s conclusion that he could not “rule out the possibility of further offending” is undoubtedly trite, but it is difficult to argue with. The second difficulty, which is perhaps more fundamental in the circumstances of this case, is that the Minister had before him a psychologist’s report which concluded, after detailed analysis, that Mr Sabado was in the “moderate-low risk category compared to other male sexual offenders”. The report also referred to certain risk factors for Mr Sabado. Whatever one may think about the report, it provided a proper basis for the conclusion that there remained a risk, albeit a low risk, that Mr Sabado would re-offend.

32    As for the Minister’s observation that Mr Sabado’s “rehabilitative efforts” had not been “tested in the community in an unsupervised capacity”, it is difficult not to have some sympathy with Mr Sabado’s argument that this was a circumstance of the Minister’s own making. There could be little doubt that, had Mr Sabado’s visa not been cancelled while he was still incarcerated, he would have had the opportunity to demonstrate his rehabilitation in the community. His reintegration into the community would most likely have been structured and supervised as a result of the conditions of his parole. That would, of course, have been to the benefit of both Mr Sabado and the community generally. The cancellation of his visa put an end to that.

33    The Minister’s reasoning that Mr Sabado’s rehabilitative efforts had not been tested in the community will apply equally to virtually every person whose visa is mandatorily cancelled pursuant to subs 501(3A), given that it is a condition of cancellation pursuant to that provision that the person is serving a sentence of imprisonment on a full-time basis. It could perhaps provide a basis for the Minister, in virtually every case, to discount the genuine steps taken by an offender to rehabilitate himself or herself while in custody and to discount otherwise positive assessments of an offender’s prospects of rehabilitation. Regrettably for Mr Sabado, however, it does not follow that the reasoning, or the finding and result it effectively compels, is necessarily irrational or illogical.

34    Mr Sabado’s arguments based on the fact that the material before the Minister indicated that he had been on bail and that he had gone on excursions in the community on Christmas Island are considered in the context of his fourth ground of review. It suffices at this point to note that the evidence of those matters does not compel a conclusion that the Minister’s finding that there remained a risk that Mr Sabado will re-offend was illogical, irrational or unreasonable.

35    Mr Sabado’s first ground is accordingly not made out.

Ground 2 – Unreasonable and illogical findings at paragraphs 79 and 80 of the Reasons

36    Mr Sabado similarly contended that the Minister’s findings at paragraphs 79 and 80 were unreasonable and illogical. Paragraphs 79 to 80 are set out earlier in these reasons.

37    This ground, and Mr Sabado’s submissions in support of it, have already been considered in the context of Mr Sabado’s first ground. For the reasons given in the context of that ground, it cannot be concluded that the Minister’s findings recorded in paragraphs 79 and 80 were in any relevant sense unreasonable or illogical. While reasonable minds might perhaps differ in relation to the findings made in those paragraphs, and Mr Sabado plainly emphatically disagrees with them, it does not follow that they are illogical, irrational or unreasonable.

38    Mr Sabado’s second ground is accordingly not made out.

Ground 3 – No or insufficient evidence to support the finding made at paragraph 79 of the Reasons

39    Mr Sabado contended that there was insufficient evidence, or no evidence, to support the finding made at paragraph 79 of the Reasons that “… Mr Sabado will reoffend …”.

40    The difficulty for Mr Sabado is that the Minister did not make that finding at paragraph 79. Rather, the Minister found that “there remains a risk that Mr Sabado will reoffend, albeit a low risk”. For the reasons given in the context of Mr Sabado’s first ground, that finding was open on the material that was before the Minister. It cannot be concluded that there was no evidence which supported, or was capable of supporting, that conclusion. It was supported, at the very least, by the psychologist’s report which placed Mr Sabado in the “moderate-low risk category compared to other male sexual offenders”.

41    In his oral submissions in support of this ground, Mr Sadabo relied on the decision in Dunn v Minister for Immigration and Border Protection [2016] FCA 489. In that case, North ACJ quashed the Minister’s decision to refuse to revoke the cancellation of Mr Dunn’s visa pursuant to subs 501CA(4) on the basis that there was no evidence for the critical finding made by the Minister that if Mr Dunn re-offended “the Australian community could be exposed to great harm”: Dunn at [13]. Mr Sabado submitted that his case was analogous to Dunn. Unfortunately for Mr Sabado, however, the reasoning and conclusion in Dunn cannot be analogised in the way he contended. The problem for the Minister in Dunn was that, while there was no real dispute that there was a risk that Mr Dunn might commit further child pornography offences, there was no evidence to suggest that those offences would in any way involve Australian children. There was, therefore, “no basis disclosed for the crucial link in the Minister’s reasoning between the offences committed by [Mr Dunn] and the asserted risk of harm to the Australian community”: Dunn at [24]. No such issue arose in Mr Sabado’s case. That is because Mr Sabado’s past offences involved an Australian child. It was accordingly open to the Minister to find on the evidence that should Mr Sabado offend “in a similar fashion”, the Australian community could be exposed to significant harm: Reasons at [87].

42    It may be accepted that if the Minister’s finding that there was a risk, albeit a low risk, that Mr Sabado would re-offend was unsupported by any probative evidence, the almost inevitable result would be that his decision not to revoke the cancellation of Mr Sabado’s visa would be invalid. That finding was undoubtedly a critical finding in the Minister’s exercise of discretion. If it was made in the absence of any evidence it, and the resulting decision, would be legally unreasonable. The difficulty for Mr Sabado, however, is that it cannot be concluded that the finding was not supported by any evidence.

43    Mr Sabado’s third ground is accordingly not made out.

Ground 4 – Failure to consider material relating to recidivism

44    Mr Sabado contended in his affidavit (at [10]) that the Minister “failed to consider various aspects of my recidivism when I made representation regarding the steps I have taken to address my offending behaviour”. That may be taken to be a claim that the Minister failed to consider some of the material in Mr Sabado’s written submission on the topic of recidivism, or the risk that he might re-offend.

45    Mr Sabado’s originating application and affidavit did not clearly identify exactly what part of his submission he says was not considered by the Minister. In his oral submissions, however, Mr Sabado identified two parts of his submission that he contended were not considered by the Minister: first, that part of his submission which indicated that he was on bail for a ten month period between February and December 2010; and second, the inclusion of a copy of an “excursion record” which recorded that the Australian Border Force approved “excursion[s] to the community” by Mr Sabado during the period 23 May to 29 July 2018. Mr Sabado contended that those two parts of his submission showed that, contrary to the Minister’s finding (Reasons at [79]) that Mr Sabado’s “rehabilitative efforts” had not been tested in the community in an “unsupervised capacity”, he had in fact been in the community.

46    It may be accepted that if the “Minister overlooks a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked, which if accepted would or could be dispositive of the decision, the Minister may commit jurisdictional error”: Minister for Immigration and Border Protection v DRP17 (2018) 267 FCR 492; FCAFC 198 at [47]; Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643; FCAFC 216 at [49] and [62]. The difficulty for Mr Sabado, however, is that it is highly doubtful that either of the two parts of his submission that he highlighted could be described as a “substantial, clearly articulated argument” which could be “dispositive of the decision”. Nor could it be said that the Minister necessarily overlooked either of those matters.

47    There is no doubt that Mr Sabado’s submission to the Minister referred to the fact that he was granted bail in February 2010 and that he remained in the community until his sentencing hearing in December 2010. The submission did not, however, link the fact that Mr Sabado had been granted bail to the topic of recidivism or rehabilitation, or indeed to any particular argument in support of the revocation of the decision to cancel his visa. It is in those circumstances not particularly surprising that the Minister’s reasons do not expressly refer to the fact that Mr Sabado was granted bail. It was a matter which was at best fairly peripheral to the question of Mr Sabado’s rehabilitation and the risk of re-offending: Maioha at [62].

48    It is also doubtful that it could be said that the fact that Mr Sabado was granted bail means that the Minister’s finding that Mr Sabado’s rehabilitative efforts had not been tested in the community in an unsupervised capacity was wrong. It is plain that what the Minister was referring to in that finding was the efforts and steps that Mr Sabado had taken to rehabilitate himself while serving imprisonment. There was only the faintest suggestion that Mr Sabado had taken any concrete steps towards rehabilitation while on bail and before he was sentenced. The focus of much of his submission and the accompanying documents was the steps he had taken after he had been sentenced.

49    The information provided by Mr Sabado concerning the excursions he went on while on Christmas Island could also fairly be described as peripheral. Certainly Mr Sabado’s submission did not explain the significance of them. It is again not particularly surprising that the Reasons contain no express reference to the excursions. Perhaps more significantly, the fact that Mr Sabado went on those excursions does not mean that the Minister’s finding that Mr Sabado’s rehabilitative efforts had not been tested in the community in an unsupervised capacity was wrong. That is because, as Mr Sabado conceded at the hearing of his application, those excursions were supervised by Australian Border Force staff.

50    Finally, the fact that the Reasons contain no express reference to the excursions does not necessarily mean that the Minister overlooked the information provided by Mr Sabado in relation to them. In his original decision to refuse to revoke the cancellation of Mr Sabado’s visa, the Minister noted that Mr Sabado’s rehabilitative efforts had not been “tested in the community”. In his judicial review proceedings concerning that decision before Perry J, Mr Sabado contended that there was no evidence, or insufficient evidence, to support that finding. It is not entirely clear what submissions Mr Sabado advanced in support of that contention and it was ultimately unnecessary for Perry J to address it. Perry J’s judgment was handed down on 23 January 2019. Mr Sabado sent a copy of the excursion record to the Minister’s department on 28 February 2019. It is open to infer that the Minister’s addition of the words “in an unsupervised capacity” in the reasons for the decision which is the subject of this proceeding was his response to that information. While that response was fairly oblique, it nevertheless suggests that the information was not ignored.

51    In all the circumstances, it cannot be concluded that the Minister overlooked important or potentially dispositive arguments in Mr Sabado’s submission simply because the Reasons do not expressly refer to either the fact that Mr Sabado was on bail, or to the fact that Mr Sabado went on supervised excursions while on Christmas Island. The absence of any express reference to those fairly peripheral matters does not mean they were overlooked. Nor do those facts demonstrate that the Minister’s finding that Mr Sabado’s rehabilitative efforts had not been “tested in the community, in an unsupervised capacity” was wrong.

52    A fair reading of the Reasons reveals that the Minister did consider and address the substance of Mr Sabado’s submission and supporting material on the topic of recidivism. Mr Sabado’s real complaint would appear to be that the Minister did not give enough weight to some of that material, or that he simply disagreed with the Minister’s findings. Neither of those complaints can support a claim that the Minister’s discretion under subs 501CA(4) was not exercised according to law. For the reasons already given, the Minister’s findings concerning the risk, albeit low risk, that Mr Sabado might re-offend were open to the Minister on the material that was before him.

53    Mr Sabado’s fourth ground is accordingly not made out.

Ground 5 – The Court’s previous judgment

54    Mr Sabado contended, at paragraph 11 of his affidavit, that the Minister “failed to make any findings regarding the original Federal Court decision based on his response”.

55    The short answer to that complaint is that the Minister was not obliged to consider the Court’s previous decision when considering the exercise of his discretion on the second occasion. The Court’s previous decision concerned an earlier decision made by the Minister and was essentially irrelevant to the Minister’s decision which is the subject of this proceeding.

56    It should also perhaps be observed, in this context, that it would appear that the Minister did have regard to the Court’s previous decision. That is because the error identified in the Court’s previous decision, which was that the Minister had failed to take into account Mr Sabado’s completion of a therapeutic sex offender program, was in effect remedied by the Minister in the decision which is the subject of this proceeding. As was noted earlier, the Reasons (at [63]) specifically advert to the fact that Mr Sabado had voluntarily attended and completed that program.

57    Mr Sabado’s fifth ground is accordingly not made out.

Ground 6 – Incorrect finding of fact

58    This ground was advanced by Mr Sabado for the first time in his oral submissions at the hearing. It relates to the Minister’s observation, at paragraph 85 of the Reasons, that he had considered the length of time that Mr Sabado had “made a positive contribution to the Australian community (four years)”. Mr Sabado contended that the evidence which was before the Minister in fact showed that he had worked in Australia for 13 years.

59    Two things should be noted to put this complaint in context. First, one of Mr Sabado’s grounds in his judicial review application in respect of the Minister’s first decision was, in substance, that the Minister had incorrectly found that Mr Sabado had only been working in Australia for four years. That caused the Minister to find, erroneously in Mr Sabado’s submission, that he had “been participating in, and contributing to, the community for only a short period”. It was ultimately unnecessary for Perry J to decide the merits of that submission. Following the handing down of Perry J’s judgment, however, Mr Sabado sent the Minister’s department his “personal work and educational resume”.

60    Second, the Reasons correctly record, at paragraphs 17 and 19, that Mr Sabado had “spent 13 years contributing to the Australian community through employment” and had “spent approximately seven years contributing positively to the community through employment before he began to offend”. The Minister recorded that he gave “more weight” to the latter consideration. Those findings largely reflect the information contained in the resume that Mr Sabado provided to the Minister’s department after Perry J handed down the judgment in the first judicial review proceedings.

61    What appears to have happened is that the Minister took into account the information in Mr Sabado’s resume and made correct findings in the body of the Reasons concerning Mr Sabado’s employment history. Those findings, however, were not replicated in the concluding paragraphs of the Reasons. The likelihood is that the earlier version of the Minister’s reasons was used as a template for the Reasons. The body of the Reasons were altered to refer to the new information in the form of Mr Sabado’s resume, but through some administrative oversight or sloppiness, the concluding paragraphs were not altered to reflect the new information.

62    In all the circumstances, the error in paragraph 85 of the Reasons does not amount to a jurisdictional error. At its very highest it amounts to a factual error within jurisdiction. Given that the body of the Reasons record the correct findings concerning Mr Sabado, the error in paragraph 85 could perhaps more accurately be characterised as an administrative error which was not in any way material to the ultimate decision by the Minister.

63    Mr Sabado’s sixth ground is accordingly not made out.

Conclusion and disposition

64    It is difficult not to feel some degree of sympathy for Mr Sabado. The crimes he committed were undoubtedly egregious and warranted condign punishment. However, when one reads the material that was before the Minister, there were some sad and extenuating circumstances. More significantly, the material that was before the Minister clearly indicates that Mr Sabado was and is genuinely remorseful and that, since pleading guilty to the offences, he has done virtually everything that he has been able to do to rehabilitate himself. The sentencing judge considered it highly unlikely that Mr Sabado would re-offend and everything that has occurred since then would seem to affirm that position. He has the considerable support of many people who not only believe that he has rehabilitated himself, but are determined to ensure that is the case. Had Mr Sabado’s “rehabilitative efforts” been allowed to be “tested in the community”, there is virtually nothing to suggest that he would not pass that test.

65    To send Mr Sabado back to a country where he has not lived for many years and where he does not have the family and community support he has in Australia appears to be very harsh and in nobody’s best interests.

66    Nevertheless, the legislature has seen fit to confer the power to cancel visas, and to revoke the cancellation of visas, to the Minister, not to the Court. The powers and discretions conferred on the Minister in that regard are broad and largely unfettered. The Court’s jurisdiction and power to review such decisions is limited to ensuring that such decisions are made lawfully. While reasonable minds might differ about the reasoning and conclusions reached by the Minister in Mr Sabado’s case, it cannot be concluded that the Minister exercised his discretion unreasonably, in the legal sense, or that he acted beyond power, or that his discretion otherwise miscarried as a matter of law.

67    Ultimately, Mr Sabado failed to demonstrate any error on the part of the Minister in the exercise of his discretion pursuant to subs 501CA(4) of the Act. His application must accordingly be dismissed with costs.

Associate:

Dated:    9 April 2020