FEDERAL COURT OF AUSTRALIA

Tuberi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1029

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed with costs, as agreed or as assessed.

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

REASONS FOR JUDGMENT

STEWARD J.:

1    Before me is an application for an extension of time within which to seek judicial review of a decision made personally by the respondent (the “Minister”) not to revoke pursuant to s. 501CA of the Migration Act 1958 (Cth.) (the “Act”) an earlier decision to cancel the applicant’s class BB, subclass 155, five year resident return visa (the “visa”). The applicant was required to make that application within 35 days of the date of the impugned migration decision. However, he failed to do so. About 26 days after the expiration of the 35 day period, he applied for an extension of time. I have the power to grant that extension: s. 477A(2) of the Act.

Applicable Legislation

2    Section 477A(1) and (2) of the Act provides:

Time limits on applications to the Federal Court

(1)    An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2)    The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

3    Section 501CA relevantly provides:

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.

…

Applicable Test

4    The applicable test for determining whether to grant an extension of time was not in doubt. The Court must consider the extent of the delay, any prejudice a respondent might suffer because of the delay, the explanation for the delay, and the merits of the proposed application: see Singh v. Minister for Immigration and Border Protection [2017] FCA 150 at [19] and SZTRY v. Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. For the purposes of considering the issue of merit, the proposed grounds of review are examined at a reasonably impressionistic level: Guo v. Minister for Immigration and Border Protection [2018] FCAFC 34 at [27].

The Explanation for Delay

5    The applicant was born in Fiji and migrated to Australia at the age of nine. He relied on the second of two affidavits he had sworn as providing an explanation for the delay. He deposed that when he received the Minister’s decision on 21 November 2019 he was in detention at Yonga Hill. He was of the belief at that time that it was not possible to seek judicial review of the Minister’s decision. He did not seek legal advice about this issue because there was no lawyer at the detention centre that he could approach; he could not leave the centre to find a lawyer; and his previous solicitor had said “she could not do anything for” the applicant. Understandably, the applicant became depressed. He was “overcome with bad thoughts”. In January 2020 he sought help from a psychologist at the Centre. The psychologist advised the applicant that he could have the Minister’s decision reviewed by this Court. She obtained for him the appropriate court forms and helped the applicant to complete them.

6    I have no reason to doubt the applicant’s account of what had occurred. Whilst the Minister did not concede that this explanation was adequate, in my view it supplies a more than sufficient explanation for the delay which had taken place. Accordingly, this factor favours an extension of time.

The Extent of the Delay and Prejudice to the Minister

7    The extent of the delay was minor. That favours the grant of an extension of time.

8    The Minister did not submit that he was relevantly prejudiced by the short delay in bringing the application for review. Again, that factor favours the grant of an extension of time.

The Merits of the Proposed Application

Background Facts

9    On 7 May 2015 the applicant failed the character test in s. 501 of the Act when he was sentenced to an aggregate 54 months term of imprisonment. His visa was subsequently cancelled on 22 June 2017 under s. 501(3A) of the Act. The crimes the applicant committed on this occasion included intentionally causing injury, recklessly causing injury, assault, injurious imprisonment, making a threat to kill, assaulting police and intentional damage of property. It was not entirely clear what acts comprised these crimes. Court Services Victoria had advised the Minister’s Department that sentencing remarks and other further information were “not available.” Instead, the Minister had regard to a media article which described a four hour siege at Bairnsdale at which the applicant held his partner, Ms. Alana Cook, and his children hostage. This had apparently been presented to the applicant for comment. He did not dispute the contents of the article, although he did seek to qualify the seriousness of his offending. In his decision, the Minister described the article, and the applicant’s qualification, in the following terms at para. 68:

I have considered the general context of a media article published in the Melbourne Herald Sun on 12 June 2014, titled ‘Man arrested after holding pregnant ex-partner and her children hostage in four-hour siege in Bairnsdale’. The article suggests that Mr TUBERI, suspected of being on drugs, had taunted police while holding his pregnant ex-partner and her two children hostage during a four-hour siege. The article also suggested that during the siege Mr TUBERI came out of the house with a wooden object and smashed the front and side windows of a police vehicle that was parked at the scene, and that he appeared ‘extremely aggressive’. The article implied that during one of Mr TUBERI’s tirades towards the police, an officer was able to usher the woman and children to safety. While I accept that media articles can be exaggerated and are not always correct or accurate, I have considered the general information in relation to the offence as stated above. I also note that the article was presented to Mr TUBERI for comment and he has not disputed the information contained in the article. In relation to this article however, Mr TUBERI’s representative submitted that Mr TUBERI did not have [a] firearm, did not make threats to kill and did not touch or hurt Ms Cook. However his representative does state that Mr TUBERI ‘rampaged around the house’ and behaved in an ‘aggressive and frightening manner’.

10    The National Police Certificate, which was before the Minister, reveals a very long history of criminal convictions commencing on 6 April 2006 in the Bairnsdale Children’s Court and ending on 11 November 2016 in the Bairnsdale Magistrates’ Court.

11    In his decision made for the purposes of s. 501CA(4) of the Act, the Minister made a number of findings which favoured revocation of the visa cancellation decision. These were well summarised in the applicant’s written submissions as follows:

(a)    It was in the best interests of Mr Tuberi’s biological daughter, Orlanda, that the cancellation be revoked.

(b)    It was in the best interests of Mr Tuberi’s stepsons, Xavier and Izaiah, that the cancellation be revoked.

(c)    It was in the best interests of Mr Tuberi’s child-aged brother, Aaron, that the cancellation be revoked.

(d)    Mr Tuberi had other familial ties to Australia, comprising: his mother, stepfather, a sister, two step siblings and an uncle and aunt. A decision not to revoke Mr Tuberi’s Visa [cancellation] would occasion emotional hardship on this family unit.

(e)    Mr Tuberi has made a positive contribution to the Australian community for 20 years, through his employment, church youth group and sailing activities.

(f)    A lower standard of health services will be available to Mr Tuberi in Fiji when compared to Australia.

 (g)    Mr Tuberi will have limited social and economic support in Fiji.

 (h)    Mr Tuberi may experience difficulty in finding employment and earning an income in Fiji.

 (i)    Mr Tuberi may experience difficulty in finding accommodation in Fiji.

 (j)    Mr Tuberi may be unable to maintain the same standard of living in Fiji.

 (k)    Mr Tuberi will face very significant impediments to resettlement in Fiji.

 (l)    Separation from his children and his family will cause Mr Tuberi emotional hardship.

 (m)    There were mitigating factors that may have contributed to Mr Tuberi’s previous offending.

 (n)    Mr Tuberi was remorseful for his previous offending.

 (o)    Mr Tuberi was motivated to change his behaviour now that he is a father.

 (p)    Mr Tuberi had successfully completed courses directed at his rehabilitation.

 (q)    Mr Tuberi had the support of his family in his rehabilitation efforts.

 (r)    Mr Tuberi was to be provided with ongoing professional support, in his rehabilitation efforts.

(Footnotes omitted.)

12    I gratefully adopt the foregoing summary.

13    Nonetheless, the Minister decided that the applicant represented an unacceptable risk of harm to the Australian community and that this factor outweighed all of the matters which supported revocation of the cancellation decision. The Minister concluded at para. 112 of his reasons as follows:

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 TUBERI 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 and other minor family members, as a primary consideration, and any other considerations as described above. These include his lengthy residence and ties, his claims that he will suffer hardship and harm if returned to Fiji, employment, volunteer and familial [ties] to Australia, and the hardship Mr TUBERI, his family and social networks will endure in the event the original decision is not revoked.

14    As the most serious of the crimes committed by the applicant were committed in connection with the “siege” at Bairnsdale involving Ms. Cook, the applicant drew to the Court’s attention his claim that he was now committed not to make contact with her. That claim was recorded at para. 46 of the Minister’s reasons for decision as follows:

I accept that Mr TUBERI’s representative has stated that “[the applicant] is committed to having no contact with [Ms. Cook] and contact with the children when the IVO orders allow it’. The representative also states that ‘the impact on [Ms. Cook] would be minimal if [the applicant] was allowed to remain in Australia’.

15    There appears to be a passing reference to this claim in the Minister’s consideration of the risk to the Australian community at para. 90 of his reasons as follows:

Mr TUBERI’s representative also submits that he is not a threat to the Australian community or to his ex-partner as he is committed to abstaining from drugs and alcohol, and that he understands that he cannot contact Ms Cook by any means.

(Emphasis added.)

The Proposed Grounds of Review

16    There were two proposed grounds of review. They were as follows:

1.    The Minister failed to complete his task, took into account irrelevant considerations, failed to take into account relevant considerations, and engaged in irrational or illogical reasoning, in his conclusion that the Applicant represents an “unacceptable risk of harm” to the Australian community (at [112] of the Decision).

Particulars

A.    In assessing the quality of the risk of harm that the Applicant presented to the Australian Community, the Minister irrationally found, and impermissibly took into account, that Ms Cook’s letters to the Applicant demonstrated that the Applicant disregarded judicial authority;

B.    In assessing the quality of the risk of harm that the Applicant presented to the Australian Community, the Minister failed to consider the fact that the Applicant had not contacted Ms Cook since his conviction for contravening the family violence order on 9 May 2016;

C.    In assessing the quality of the risk of harm that the Applicant presented to the Australian Community, the Minister failed to consider the fact that the Applicant’s historical offending occurred when he was a minor, failed to consider the distinguishing features of that offending and his recent offending in relation to Ms Cook, and failed to consider the Applicant’s conduct in relation to Ms Cook subsequent to that offending.

D.    In coming to his conclusion that the risk the Applicant presented was “unacceptable”, the Minister made no qualitative judgment as to the acceptability or unacceptability of the risk that he found to exist.

2.    The Minister’s conclusion that “I am not satisfied, for the purposes of s 501CA(4)(b)(ii) that there is another reason why the original decision under s 501(3A) to cancel Mr TUBERI’s visa should be revoked” (paragraph [113]) was legally unreasonable.

Particulars

The error can be inferred given the Minister’s conclusions that:

A.    It was in the best interests of the Applicant’s biological daughter that the cancellation be revoked (paragraph 24);

B.    It was in the best interests of the Applicant’s two step-sons that the cancellation be revoked (paragraph [25]);

C.    It was in the best interests of his brother that the cancellation be revoked (paragraph [26]);

   D.    The Applicant had family and social ties to Australia (paragraph [37]):

E.    The Applicant’s immediate family in Australia would experience emotional hardship (paragraph [45]);

F.    The Applicant had made a positive contribution to the Australian community for 20 years (paragraph [45]);

G.    The Applicant will experience difficulty in finding employment, earning an income, and sourcing suitable   accommodation in Fiji (paragraph [57]);

H.    The Applicant will experience significant emotional hardship due to the separation from his children and family (paragraph 60);

 I.    There were mitigating factors that may have contributed to his offending, including his ADHD diagnosis (paragraphs [87] - [88]);

   J.    The Applicant was remorseful for his offending (paragraph [93]);

K.    The Applicant will be provided with ongoing professional support in his efforts to rehabilitate (paragraph [100]);

   L.    The Applicant is motivated to change his behaviour (paragraph [103]);

And given:

M.    The risk was characterised as one to the effect that the Minister “could not rule out the possibility of further offending” (paragraph [110] of the Decision);

N.    The absence of lawful findings as to the quality and acceptability of the risk of harm identified (see ground 1);

O.    The absence of evidence of the impact on Ms Cook, and the Applicant’s attitude as to his proposed future conduct with Ms Cook (paragraphs [46] - [47]).

The Submissions of the Parties

17    Before me, the applicant was represented by L. Howard of Counsel on a pro bono basis. The Court is much indebted to Mr. Howard for the very valuable assistance he gave the Court.

18    In relation to proposed ground one, the applicant’s submissions turned upon a particular way of reading the Minister’s finding about the issue of risk of harm to the Australian community. It was contended that the reference to the Australian community was really a reference to the risk of harm to the applicant’s former partner, Ms. Cook. She had been one of the victims of the four hour siege described by the Minister in his reasons. She had also been the victim of a subsequent breach of an intervention order when the applicant tried to contact her in 2016. Read in this way, the Minister’s conclusion, it was said, was directly inconsistent with his earlier recognition that the applicant was committed to having no more contact with Ms. Cook.

19    Before me, the applicant placed greater emphasis on his contention that the Minister had also erred in failing to take this claim into account in considering the risk to the community. The failure to refer expressly to this claim when dealing with the issue of risk supported, it was said, an inference that it had not been considered. This left what was described as a “hole” in the Minister’s reasons.

20    It followed, it was submitted, that the Minister had failed to complete his statutory task, had failed to take into account a relevant consideration and his conclusion about the risk of harm was irrational. The Minister, it was said, also took into account irrelevant information in considering “love letters” sent by the applicant to Ms. Cook whilst in prison and the fact that the applicant and Ms. Cook had continued their relationship for 10 months in breach of bail conditions. These matters were irrelevant, it was said, having regard to the applicant’s decision to have no contact with Ms. Cook.

21    The applicant also relied upon the decision of the Full Court of this Court in Assistant Minister for Immigration and Border Protection v. Splendido [2019] FCAFC 132. In that case, as here with respect to the siege at Bairnsdale, the Minister did not have regard to any sentencing remarks concerning Mr Splendido’s offending. A bare recitation of past offences – such as that found on a National Police Certificate – could not be used, it was said, to make a positive finding about the risk of offending in the future. As Mortimer J. (with whom Moshinsky J. agreed) observed at [77]-[78]:

The bare recitation of what a person has done in the past, if used as a basis for a positive finding about what she or he may do in the future, is a reasoning process which is rejected by the judicial process in relation to fact-finding about legal responsibility for past events. More than the bare recitation of the past offending is required, and what is required for such evidence to be considered is strictly controlled by reference to the nature and circumstances of the offending, as Hughes and the authorities before it demonstrate. In the sentencing context, or in a context of any further exercise of power to detain a person, where a court is required to address a person’s risk of re-offending in the future, the complexity of that analytical process and the difficulty of judges undertaking that task themselves is judicially acknowledged, as the observations in RJE demonstrate.

The nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending. In these processes, a court acts on more than the bare historical fact of when and where a person committed offences and the legal description of those offences. Otherwise, the prejudicial and impermissible kind of reasoning to which Gageler J referred in Hughes is what can dominate any reasoning process.

22    It was submitted that the “nature and circumstances” of the applicant’s offending necessarily include the applicant’s professed commitment not to contact Ms. Cook. The Minister erred in assessing risk without taking that factor into account.

23    The second proposed ground of review attacked the Minister’s conclusion about the risk of harm outweighing all of the positive findings favouring revocation as being legally unreasonable. In that respect, the applicant emphasised that legal unreasonableness should be inferred here from the very outcome of the Minister’s decision. The Minister had observed that he “could not rule out the possibility of further offending” by the applicant. This was said to support an inference that this possibility was “at the lowest end of the risk spectrum.” Such an unlikely possibility could not support the Minister’s conclusion that the risk of re-offending was unacceptable in the light of the many positive findings which favoured revocation. It followed that the Minister’s conclusion demonstrated that he had not taken responsibility for what he was doing: Minister for Home Affairs v. Omar [2019] FCAFC 188; (2019) 373 A.L.R. 569 at 586 [38]. It also followed that his reasoning did not reflect “an honest confrontation with the consequences that will be visited” upon the applicant and his family: Hands v. Minister for Immigration and Border Protection (2018) 267 F.C.R. 628 at 630 [3] (per Allsop C.J. with whom Markovic J. agreed; Steward J. agreed with the result). It followed that the Minister’s conclusion was not supported by an intelligible reason given that the applicant was committed to staying away from Ms. Cook and there were many benefits to the applicant remaining in Australia, especially for his family. In simple terms, it was said that the risk of re-offending was so tenuous as to deny the existence of an intelligible justification for the Minister’s decision.

24    For the foregoing reasons, the applicant sought an extension of time and that his application be allowed.

25    The Minister opposed the application for the extension of time on the basis that it lacked sufficient merit. As to the first proposed ground of review, the Minister submitted that he was not obliged to undertake a line by line refutation of every contention made by an applicant; it was sufficient if the claims had been considered as a matter of substance: Minister for Home Affairs v. Buadromo (2018) 267 F.C.R. 320 and Minister for Immigration and Border Protection v. Maioha (2018) 267 F.C.R. 643. The Minister disputed the way in which the applicant construed the Minister’s finding about the risk to the Australian community of the applicant re-offending. The risk was not confined to Ms. Cook. That conclusion was supported, it was said, by para. 71 of the reasons of the Minister as follows:

In considering Mr TUBERI’s criminal history which includes offences of violence, and the sentences imposed by the Courts which included terms of incarceration, I find Mr TUBERI’s offending to be very serious.

26    In that respect, some of the applicant’s violent offending had not occurred in the context of a relationship. There was also the risk of re-offending in a future relationship with a person other than Ms. Cook. In that respect, the Minister was also entitled to characterise the breach of the bail conditions imposed upon the applicant as demonstrating a “disregard for judicial orders”.

27    The Minister, it was submitted, was otherwise fully aware of the applicant’s claimed decision not to contact Ms Cook anymore. On the basis that the Minister was considering the risk to Ms. Cook and no one else, when the time came for the Minister to assess the risk to the community this claim was not so “compelling and central” to the reasoning process as to require express consideration. Rather, it was submitted, I should infer that the Minister was aware of the claim (because of para. 46) but did not consider the point to be material to the conclusion he reached more generally about the risk that the applicant might commit more acts of violence in the future. I was referred to DFW18 v. Minister for Home Affairs [2019] FCA 599; (2019) 165 A.L.D. 259.

28    The Minister contended that Splendido was distinguishable because it turned upon unique facts. The observations made by Mortimer J. about the assessment of risk needed, it was said, to be considered in the light of those facts. They should not be read as being inconsistent with the generally accepted proposition that the Minister was not required to evaluate the risk of harm to the community in any particular way: BSJ16 v. Minister for Immigration and Border Protection (2017) 252 F.C.R. 82 at 93 [43]. Splendido was otherwise distinguishable because the Minister in this case did not rely solely on the list of crimes contained in the National Police Certificate. The Minister had regard to some sentencing remarks about a breach of family violence order, and in relation to the applicant’s most serious offending, the Minister had the media report the accuracy of which the applicant did not substantially dispute. The Minister also had reports of the applicant’s behaviour in custody and the applicant’s response to those reports. In addition, and unlike Splendido, the Minister had before him an explanation for the applicant’s re-offending; the causes lay in alcohol and anger management. This was explained by the applicant’s lawyers in a submission made in support of revocation of the cancellation decision as follows:

[The applicant] admits to having had a problem with anger management in the past. However, [the applicant] is committed to addressing his anger management issues by undertaking an Anger Management Course. He is on the waiting list for Anger Management at Port Phillip Prison and will continue to see a counsellor at a community health centre such as Gippsland Lakes Community Health or Latrobe Community Health on his release from custody.

The offences committed against [the applicant’s] partner [Ms. Cook] also involved alcohol and anger management issues. [The applicant] completed an eight week Drug and Alcohol Rehabilitation Course run by the Salvation Army in Bendigo in 2014. The course was a six week course but [the applicant] voluntarily requested to continue the course for another two weeks. A report from the Salvation Army clinical psychologist is attached to our submission. [The applicant] has not used drugs or alcohol since commencing the program. He is determined to continue the abstinence from drugs and alcohol in the future because he understands the impact they have on his behaviour and the resulting trouble substance abuse causes.

29    In relation to the second proposed ground of review, the Minister emphasised that he had “broad decisional freedom” in weighing the factors for and against revocation. I was also referred to the following passages in the reasons for judgment of Bromwich J. (with whom White J. agreed) in BHL19 v. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 at [326]-[327] as follows:

In the exercise of a statutory power which requires reaching a state of satisfaction, in this case refusal to grant a visa under s 501(1) if the Minister was not satisfied that the appellant passed the character test, an implied condition is that this state of mind be arrived at rationally, including that findings of fact be based on evidence that is rationally probative of the fact in issue: BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54 at [40]. While this challenge was brought upon the basis of asserted legal unreasonableness, not irrationality per se, the assessment of whether the material before the Minister was capable of supporting the impugned conclusions reached is much the same. Legal capacity of such material, rather than its weight, goes to the lawfulness of the exercise of power, not the merits of that exercise of power. It is akin to the difference between the role of a tribunal of law in deciding whether evidence has the legal capacity to prove a fact, such that there is a case to answer, and a tribunal of fact in assessing evidence to determine whether a fact in issue has been proven. Thus, in a criminal jury trial, “if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision” and may only be taken away from the jury by a directed verdict “if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty”: Doney v The Queen (1990) 171 CLR 207 at 214-15. It hardly seems likely that an administrative decision-maker has less latitude to evaluate material that lacks quality than a jury deciding the question of whether guilt of a serious criminal offence has been established.

The legal capacity of the material before the Minister to support the conclusions reached will not necessarily be lacking if it is weak, or capable of a benign explanation, or might support a different conclusion, because that is merely something about which reasonable minds may differ, perhaps even vociferously: see BFH16 at [29], citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [96] and [130], and ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [47].

I was urged to apply these passages here.

30    Contrary to the contention of the applicant, the Minister submitted that he did not make a finding that the risk of re-offending was at the “lowest end of the risk spectrum.” The Minister had also observed that there was no evidence that the applicant’s offending behaviour had ceased; he made a general observation that there was an “ongoing risk” of re-offending; and he had characterised the applicant’s past offending as “very serious”. These observations did not support the proposition that the risk of re-offending was at the “lowest end” of the spectrum. It followed, it was submitted, that the Minister had rationally concluded that the risk of harm to the Australian community outweighed the factors that favoured revocation.

Disposition

31    Looking at this matter in a reasonably impressionistic way, and with very great respect to Mr. Howard who did his very best for the applicant, I do not think that this matter has sufficient merit to warrant an extension of time. And that is so notwithstanding the other matters I have mentioned which favour a grant of leave. In my view, based on the present proposed grounds of review, and the submissions made in support of them, the applicant, I am afraid, has no real prospects of success.

32    The first proposed ground of review is entirely premised upon construing the Minister’s finding about the risk to the “Australian community” as confined to the risk to Ms. Cook. If that were correct, this ground could have substance. But I respectfully cannot see how the Minister’s generalised findings about harm can be qualified or limited in this way. The simple fact is that if the Minister had intended to make a finding that was specific only to the risk to Ms. Cook, he would have said so. But that is not what he did. Instead, he followed the framework of “Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (“Direction 79”) (even though he was not bound to do so). As is well known, Direction 79 requires a decision maker to consider “risk to the Australian community.” The Minister did precisely that. He recorded what he did at para. 75 of his reasons as follows:

I have considered whether Mr TUBERI poses a risk to the Australian community through re-offending by having regard to any mitigating or causal factors in his offending, and giving consideration to the steps Mr TUBERI has undertaken to reform and address his behaviour. I have also taken into account Mr TUBERI’s overall conduct in the custodial and non-custodial environment, and his insight into the offending.

33    As the Minister correctly observed in his submissions, in undertaking the foregoing task the Minister did not confine himself to the applicant’s relationship with Ms. Cook. He did not confine himself to a consideration of the siege at Bairnsdale. He took into account the applicant’s other offending. In that respect the National Police Certificate listed at least eight other instances of violence or threatened violence. He also took into account a prison report and the applicant’s response to it. In my view, the only way to read the Minister’s findings about the risk to the community is to risk across the entire community. The concern was with the applicant’s propensity for violence more broadly. The material before the Minister did not suggest that this vice was limited to Ms. Cook and no-one else.

34    It follows that the Minister did not err in not expressly referring to the applicant’s claim that he was committed to staying away from Ms. Cook (leaving aside, for the purposes of considering the application before me, the oblique reference to Ms. Cook at para. 90 of the Minister’s reasons). Once it is understood that the Minister was not assessing the risk to Ms. Cook but to the community, the applicant’s point lost all of its force. What the Minister was doing here was assessing risk more generally having regard to all of the applicant’s past acts of violence, and the nature of those acts. In that context the applicant’s claim, recorded at para. 46, was, in my respectful view, neither a compelling nor central consideration. The mere reference in passing to Ms. Cook at para. 90 of the Minister’s reasons dealing with his consideration of the risk to the Australian community tends to support this view.

35    I also respectfully agree with the Minister’s submission concerning Splendido. That was an “extreme and rare case”: (at [96]). The Minister had erred because there had not been in that matter even a skerrick of evidence to support the findings made about the risk of re-offending. The descriptions of the offences in the National Police Certificate were, in that respect, simply too vague to ground a sensible prediction about what Mr Splendido might or might not have done in the future. Here, as the Minister pointed out, he had before him more than just the National Police Certificate. I also agree that Mortimer J.’s observations about how the Minister must assess risk need to be read in the context of the facts of that case. They do not conflict with the general proposition that it is for the Minister to determine how to assess risk.

36    As for the second proposed ground of review, to the extent that it relies upon reading the Minister’s reference to risk to the community as being risk to Ms. Cook and no more, it suffers from the same vice as proposed ground one. It also suffers from another difficulty. This ground also relies upon characterising the Minister’s findings about risk as being “at the lowest end of the risk spectrum.” Again, if this is what the Minister had really found, being a fundamentally important matter, he would have said it in his reasons. But there is nothing in the reasons which comes close to a statement that the quality of the risk was this low. In that respect, I do not think that, when the reasons are read in totality, the reference at para. 110 of those reasons to the Minister not ruling out the “possibility of further offending” can support the applicant’s characterisation of what the Minister had decided. I otherwise do not respectfully agree with the applicant’s submission that because of the very many matters that favoured revocation, the Minister’s ultimate decision was irrational or illogical, in the required sense (as considered by the High Court in Minister for Immigration and Citizenship v. Li (2013) 249 C.L.R. 332 and in Minister for Immigration and Border Protection v. SZVFW (2018) 264 C.L.R. 541). Those favourable matters could possibly have led a different Minister reasonably to have given them greater primacy such that they might have outweighed the risk of re-offending. But that conclusion does not suggest the presence, for example, of illogically, irrationally, or manifest unreasonableness. Rather, it expresses disagreement with the Minister’s decision. That, with very great respect, is not enough.

37    Because the proposed grounds of review are premised on a way of reading the Minister’s reasons which is not open, it follows that the application for review, when examined in the reasonably impressionistic way required by the authorities, is bound to fail. For that reason, there is no sufficient justification for the extension of time sought.

38    The application should be dismissed with costs.

Associate:

Dated:    23 July 2020