Federal Court of Australia

Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1223

ORDERS

THE COURT ORDERS THAT:

1.    The time within which the Applicant may commence the proceeding is extended to 8 May 2020, being the date on which the Applicant’s Application for Extension of Time and proposed Originating Application was first filed.

2.    The proceeding is dismissed.

3.    The Applicant is to pay the costs of the First Respondent, either as taxed or agreed.

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

REASONS FOR JUDGMENT

FLICK J:

1    The Applicant in the present proceeding, Mr Stanley Tohi, was born in Tonga in 1955 and is a citizen of New Zealand. He first arrived in Australia in 2010.

2    After having abstained from drinking alcohol for over 20 years, in March 2017 Mr Tohi drank a considerable quantity of alcohol after having had an argument with his partner. Whilst drunk he drove his brother’s motor vehicle. The car mounted the curb and caused serious injury to a pregnant woman who was walking with her partner and two children.

3    In December 2017 Mr Tohi was convicted of Aggravated dangerous driving occasioning grievous bodily harm, for which he was sentenced to three years’ imprisonment.

4    In August 2018 a delegate of the Minister cancelled Mr Tohi’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth). Section 501(3A) confers power on the Minister or delegate to cancel a visa where the visa holder “does not pass the character test”. Mr Tohi did not pass the character test by reason of his conviction. In December 2019 a delegate of the Minister decided pursuant to s 501CA(4) not to revoke the cancellation. Mr Tohi applied to the Administrative Appeals Tribunal for review of that decision. After a two day hearing, during which the Applicant was self-represented, the Tribunal affirmed the decision under review: Re Tohi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 495.

5    Mr Tohi now seeks judicial review of the Tribunal’s decision in this Court. His application, however, was not filed within time. At the time he sought to file his application he was in immigration detention and it would appear that an earlier attempt to commence a proceeding by way of electronic filing proved unsuccessful. The Respondent Minister accepts that some explanation for the delay has been provided and claims no prejudice should an extension of time be granted.

6    Both Mr Tohi and the Respondent Minister appeared before this Court represented by Counsel.

7    It is concluded that an extension of time should be granted but that the application for review should be dismissed with costs.

The grounds of review

8    The grounds upon which review of the Tribunal’s decision is sought in this Court are expressed as follows in Mr Tohi’s Amended application for review of a migration decision as filed in July 2020 (without alteration):

1.    The second respondent (the Tribunal) made a finding of fact which was irrational and legally unreasonable.

Particulars

The Tribunal made a finding:

i)    that the applicant was at a ‘moderate risk of reoffending’ [at par. 48];

ii)    such a finding had no evidentiary basis.

2.    The Tribunal’s finding, at [48], that there was a ‘low to moderate’ risk that the applicant would reoffend, is inconsistent with its finding [at 92] that there is a dearth of evidence it wont happen again’.

9    No extensive analysis of legal principle is required to resolve these two grounds. But some generally accepted principles should nevertheless be stated.

10    First, it is common ground that any application for judicial review needs to establish some legal error and does not extend to a review of the factual merits of the decision under review: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 (“Quin”). Brennan J (as his Honour then was) there observed:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

His Honour further observed at 38:

If judicial review were to trespass on the merits of the exercise of administrative power, it would put its own legitimacy at risk.

See also: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [25], (2006) 228 CLR 152 at 160 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [23], (2010) 243 CLR 164 at 174 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

11    Second, legal error is not exposed in respect to a finding of fact provided there is “some basis” for the finding made, and legal error is not exposed at common law even if there is some “illogical reasoning”: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356. Mason CJ there summarised the position as follows:

But it is said that “[t]here is no error of law simply in making a wrong finding of fact”: Waterford v. The Commonwealth [((1987) 163 CLR 54 at 77] per Brennan J. Similarly, Menzies J. observed in Reg. v. District Court; Ex parte White [(1966) 116 CLR 644 at 654]:

“Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law.”

Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

12    Third, there is limited scope for judicial intervention if a conclusion or finding is “unreasonable” – but to establish such a case is not easy. The circumstances are “confined”. In Quin, Brennan J there summarised the position as follows (at 36):

… Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power … Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined.

(citation omitted)

Similarly, in Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332 at 351-352. French CJ again emphasised as follows the need to ensure that judicial scrutiny did not trespass into the merits of a decision:

[30]    The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody’s reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, “may have no particular legal consequence” [Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626].

The caution consistently exercised by a court undertaking judicial review in avoiding trespassing into the merits of an administrative decision is reflected in some judicial language which requires “extreme” illogicality to be demonstrated: e.g., Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [148], (2013) 212 FCR 99 at 137 per Robertson J. Such language may do nothing more than give emphasis to the proposition that illogicality or irrationality is not exposed where “probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence”: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [131], (2010) 240 CLR 611 at 648 per Crennan and Bell JJ.

13    Fourth, reasons for an administrative decision are not to be judicially scrutinized with a view to the detection of error by reason of a looseness of language: Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 271-272 (“Liang”). Brennan CJ, Toohey, McHugh and Gummow JJ there made the following observations as to the approach to be taken when reviewing the reasons provided by an administrative decision-maker:

When the Full Court referred to “beneficial construction”, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic [(1993) 43 FCR 280]. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be “concerned with looseness in the language ... nor with unhappy phrasing” of the reasons of an administrative decision-maker [(1993) 43 FCR 280 at 287]. The Court continued [(1993) 43 FCR 280 at 287]: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed [McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616]. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. …

See also: Liang (1996) 185 CLR 259 at 290-293 per Kirby J. Applied in: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25], (2007) 235 ALR 609 at 617 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.

14    The expression of these principles in such a general manner unquestionably conceals many subtleties – but it provides a sufficient background to the resolution of the two Grounds now relied upon by Mr Tohi.

The finding as to a moderate risk of reoffending

15    The finding as made by the Tribunal that “a moderate risk of further harm of a similar nature [to Mr Tohi’s offences] is unacceptable”, it may be noted at the outset, is one different to that as expressed in Ground 1, namely a finding said to be one as to a “moderate risk of reoffending”. But nothing turns on that.

16    The finding sought to be impugned by Counsel on behalf of Mr Tohi is that set forth in para [48] of the Tribunal’s reasons for decision. The context in which that finding is made is expressed by the Tribunal as follows:

Conclusion as to the protection of the Australian community

[47]    It is of concern to the Tribunal that in circumstances where there was “no real explanation” for Mr Tohi’s offending there is no evidence of ongoing rehabilitation. Nor is there any indication that Mr Tohi has sought counselling or any other medical intervention to understand his offending and provide the tools and coping mechanisms which might prevent it from happening again.

[48]    The government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens. Given the serious nature of the harm that flows from offences of the nature committed by the Applicant, I consider that a moderate risk of further harm of a similar nature is unacceptable. I conclude that the primary consideration of protection of the Australian community weighs strongly in favour of non-revocation of the cancellation decision.

17    If the ground of irrationality or unreasonableness or an absence of evidence is presently left to one side, the finding made by the Tribunal at para [48] as to the “risk of further harm of a similar nature” is a finding made by the Tribunal in a context where the Tribunal had earlier set forth in its reasons:

    Mr Tohi’s acceptance of “responsibility for his offence” and Mr Tohi’s contention that “his likelihood of reoffending is low” (at para [31]);

    the sentencing remarks of the trial judge (at para [32]);

    Mr Tohi’s account of his drinking habits whilst he was working at a brewery and his decision to stop drinking (at paras [34] to [35]);

    Mr Tohi’s attendance and participation in AA meetings (at paras [38] to [39]);

    Mr Tohi’s revisiting of the events leading up to his offence (at paras [40] to [41]);

    the circumstances in which Mr Tohi learnt of his daughter’s diagnosis with cancer and her subsequent death (at paras [41] to [42]) and the Tribunal expressly accepting that these events contributed “to his state of mind prior to the offending”; and

    Mr Tohi being a “well-behaved inmate who was compliant and respectful” whilst in prison – but a person who “did not complete the EQUIPS program in prison” (at para [43]).

Also set forth:

    is the Tribunal’s acceptance of Mr Tohi’s evidence that he “will look into more courses for alcohol and anger management” (at para [45]); and

    the absence of evidence “of ongoing or professional rehabilitative efforts by Mr Tohi” (at para [46]).

The Tribunal concluded (inter alia):

[94]    Whilst I accept that Mr Tohi has a genuine intention not to repeat his actions that day, the nature of the offending indicated an unpredictability in his behaviour. The Tribunal considers that this has not been addressed through meaningful measures such that the Tribunal can be reassured there was a low probability of being repeated.

18    Given the fact that Mr Tohi had no other criminal convictions, other decision-makers could have placed (for example) greater reliance upon Mr Tohi’s acceptance of responsibility for his offence and the acceptance of his evidence that he would “look into more courses for alcohol and anger management”. On the materials available, other decision-makers could have made a far more favourable assessment as to Mr Tohi’s prospects of rehabilitation and the risk that he posed to the Australian community.

19    But such matters only serve to underline the conclusion that what is being sought in the present proceeding in this Court is merits review.

20    The finding sought to be impugned by Counsel on behalf of Mr Tohi – namely the finding (at para [48]) that there was “a moderate risk of further harm” – was a:

    finding made in a context where there was much to be said for a conclusion that the events which led to Mr Tohi’s conviction in December 2017 were truly a “single, one off incident”) (at para [92])

but also a finding made in the context where:

    Mr Tohi “did not complete the EQUIPS program” (at para [43]); and

    there was no evidence that Mr Tohi was undergoing “ongoing or professional rehabilitative efforts” (at para [46]).

It was the combination of these last two matters which the Tribunal returned to when it concluded that there were no “meaningful measures” to support a conclusion that there would be a “low probability” of the offending conduct being repeated (at para [94]).

21    The present case was thus not a case in which there was “no evidence” of the finding as to there being “a moderate risk of further harm”, but rather a case in which some evidence strongly supported Mr Tohi’s case. But there were two other considerations which were unfavourable to Mr Tohi. The weight to be given to these competing sets of circumstances was a matter for the Tribunal alone: cf. Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33], (2010) 243 CLR 164 at 176 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

22    No legal error is exposed in the Tribunal member reaching the conclusion in fact reached. The finding could not be said to be one not supported by the evidence to which reference was made by the Tribunal, nor was it a finding which was “irrational” or “unreasonable”.

23    The first Ground of review is thus rejected.

An inconsistency in findings

24    The second Ground of review asserts an inconsistency between the finding at para [48], again a finding which is mistakenly referred to as a finding that there was a “low to moderate” risk that Mr Tohi would reoffend, with its finding at para [92] of its reasons for decision. That finding is made in the following context (without alteration):

[90]    Mr Tohi’s serious offending precludes him from passing the “character test” in section 501(6) of the Act.

[91]    I have examined the specific circumstances relating to Mr Tohi as part of my consideration of whether to revoke the cancellation decision. I am now required to weigh up those considerations.

[92]    The primary considerations relating to the protection of the Australian community and expectations of the Australian community are in favor of not revoking the cancellation decision. Whilst the Applicant’s offending was a single, one off incident, there is a dearth of evidence to support the contention that something similar will not happen again. The consequences of his actions were extremely serious and demonstrated a recklessness and volatility which began the moment Mr Tohi, unlicensed and sober, chose to use his brother’s vehicle.

[93]    Having regard to the considerations in the Direction, the Tribunal is not persuaded that the Applicant’s rehabilitative efforts are satisfactory relative to the risk of future harm to the Australian community should he resume his reoffending.

[94]    Whilst I accept that Mr Tohi has a genuine intention not to repeat his actions that day, the nature of the offending indicated an unpredictability in his behaviour. The Tribunal considers that this has not been addressed through meaningful measures such that the Tribunal can be reassured there was a low probability of being repeated.

In summary form, the finding at para [48] is a finding of the Tribunal member that:

    “a moderate risk of further harm” was “unacceptable”.

The finding at para [92] was a finding that:

    Notwithstanding Mr Tohi’s offence being “a single, one off incident” there was “a dearth of evidence to support the contention that something will not happen again…”.

There is, with respect, no “inconsistency” – the inference drawn from the material available to the Tribunal was that there was “a moderate risk of further harm”, the inference being that there was a “moderate risk” that Mr Tohi could engage in like conduct in the future. Standing separate from the material available to the Tribunal and upon which it reached that inference or conclusion, was the observation that there was no other material available or “evidence” to deny such an inference being drawn.

25    A further difficulty with the second Ground of review is that it requires a standard of reasoning beyond that which can be exacted from a Tribunal confronted with a burdensome workload. Any difference in language between that employed at paras [48] and [92] involves at most, with respect, some “looseness of language” and not legal error: cf. Liang (1996) 185 CLR 259 at 271-272.

CONCLUSIONS

26    Neither Ground of review has been made out.

27    The proceeding should thus be dismissed. There is no reason why costs should not follow the event.

28    Those advising the Minister are encouraged to bring the circumstances surrounding the present case to the personal attention of the Minister.

THE ORDERS OF THE COURT ARE:

1.    The time within which the Applicant may commence the proceeding is extended to 8 May 2020, being the date on which the Applicant’s Application for Extension of Time and proposed Originating Application was first filed.

2.    The proceeding is dismissed.

3.    The Applicant is to pay the costs of the First Respondent, either as taxed or agreed.

Associate:

Dated:    26 August 2020