Federal Court of Australia
Mason v Minister for Home Affairs [2020] FCA 1787
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: | 14 december 2020 |
THE COURT ORDERS THAT:
1. A writ of certiorari be issued quashing the decision of the Minister for Home Affairs dated 13 February 2018 to cancel the applicant’s Class BB Subclass 155 Five Year Resident Return Visa.
2. The applicant, Timothy James Filmer Mason, be released from immigration detention forthwith.
3. The applicant have liberty to apply within 14 days to seek further relief.
4. The respondent pay the applicant’s costs of the proceeding, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
KENNY J:
1 The applicant is a Canadian citizen by birth. He left Canada when he was about three years old and has lived in Australia for over 50 years. Before migrating to this country with his family, he lived in the United Kingdom. Both of his parents were citizens of the United Kingdom. He arrived in this country with his parents and two siblings on 15 April 1967, when he was about eight years old.
2 The applicant has sought judicial review of a decision made on 13 February 2018 by the respondent Minister to cancel his Class BB, subclass 155 Five Year Resident Return Visa pursuant to s 501(2) of the Migration Act 1958 (Cth).
3 At the relevant time, s 501(2) provided:
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
4 Section 501(6)(a) and (e) further provided:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
…
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; or
(ii) found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; …
…
5 Section 501(7)(c) stated:
(7) For the purposes of the character test, a person has a substantial criminal record if: …
(c) the person has been sentenced to a term of imprisonment of 12 months or more; …
6 On 1 December 2008, in an appeal to the County Court of Victoria, the applicant was convicted of the offence of knowingly possessing child pornography (possessing child pornography) and sentenced to 14 months imprisonment, with a non-parole period of seven months. Paragraphs 501(6)(a) and (e) of the Migration Act were therefore potentially engaged. Since his was a registrable offence under the Sex Offender Registration Act 2004 (Vic), the applicant’s name was placed on the Sex Offender Register, and he was ordered to report to Victoria Police for a period of eight years.
7 There were no sentencing remarks made available to the Minister when he came to make the decision under review. In lieu of such remarks, the Minister relied on the police summary of charges, which stated that, in March 2008, the police had executed a search warrant at the applicant’s residence and found a large quantity of child pornography, including some extremely hard core pornography.
8 In a statement submitted by the applicant to the Department and before the Minister at the time he made his decision, the applicant stated:
When I committed the crime I was suffering and [sic] a mental illness, and pleaded guilty to the charge. ...
This was broadly consistent with statements made by the applicant in his completed personal circumstances form dated 9 November 2017 (mentioned below) in seeking to explain the factors that contributed to this offending.
9 On 25 February 2009, less than a year after his conviction, a Departmental officer wrote to the applicant to notify him that consideration was being given to cancellation of his visa under s 501 of the Migration Act “on character grounds”. By a letter dated 10 June 2009, the applicant was subsequently advised that “[a]fter taking into account all relevant considerations, a delegate of the Minister … made a decision not to cancel [his] visa on character grounds at this time” (underlining original). This letter also contained the following:
Please note that visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered.
(Bold in original)
The applicant completed a form of acknowledgement that he had received with this notification, and returned the relevant document to the Department as requested.
10 Some three years later, on 17 February 2012, the applicant was convicted in the Magistrates Court of Victoria of the offence of failing to comply with reporting obligations and fined $300. This offence related to the reporting obligations attached to the applicant’s sentence for possession of child pornography. In a statement submitted to the Department and before the Minister at the time he made his decision, the applicant said that:
In late December 2010 I was asked by msm [sic] if I wish to upgrade my email. I thought nothing about this, unbeknown to me there was a chat component in the upgrade. I found this out, when my ni[e]ce at the time was in Adelaide and was having trouble with her boyfriend. While I [was] checking my email a chat screen popped up, I was talking back. So I then changed my email which I informed the sex offender registry. In my annual review I volunteered this information. It was an oversight on my behalf, and I thought it was important [to] tell the truth, where upon my annual review is then looked over by someone in charge of the registry. They deemed I made a breach on my condition even though I self-reported. I was fined $300.
This explanation was consistent with the statement in his 9 November 2017 personal circumstances form: see [38] below.
11 Notwithstanding the applicant’s perception of events, an officer of the Minister’s Department informed the applicant, by a notice dated 5 September 2017, that consideration was again being given to the cancellation of his visa pursuant to s 501(2) of the Migration Act and that he was invited to comment or provide information as to whether he passed the character test and, if the decision-maker reasonably suspected he did not, whether the decision-maker should exercise the discretion in s 501(2) to cancel the applicant’s visa. The notice also requested that the applicant complete and return two forms, including the personal circumstances form mentioned earlier.
12 In November 2017, the applicant’s legal representative made submissions seeking a favourable exercise of the discretion under s 501(2). In support of these submissions, the representative provided various documents including the report of a forensic psychologist (Ms Pamela Matthews), statements from the applicant’s mother, sister and then fiancé, and reference letters from his employer, colleagues and friends.
13 On 13 February 2018, almost a decade after his conviction for the child pornography offence, the Minister decided to cancel the applicant’s visa, and signed a statement of reasons on that date. The applicant applied to this Court for judicial review of the Minister’s decision.
Judicial Review Grounds
14 In an originating application filed on 9 April 2018, the applicant sought judicial review on the basis that the Minister’s decision involved jurisdictional error because:
1. The decision is affected by illogicality, in that the reasoning expressed at paragraphs 38-39 of the respondent’s statement of reasons is not supported by logical grounds.
2. The respondent failed to consider a submission of substance, being that the risk of harm or any re-offending by the applicant is not affected by the removal of the applicant from the Australian community (see Reasons [48]-[49]), and thereby failed to afford procedural fairness to the applicant.
3. The respondent relied in making his decision upon a finding for which there was no evidence, being what he presumed to be the expectations of the Australian community as set out in paragraphs 56-57 of the reasons.
15 On 30 March 2020, the Court granted the applicant leave, by consent, to file and serve an amended originating application dated 27 March 2020, which raised the following additional ground:
4. The respondent erred in relying on criminal offending adversely to the applicant in circumstances where a delegate of the respondent had [] earlier considered whether to cancel the applicant’s visa because of that offending and decided not to do so.
16 Pursuant to consent orders, the parties subsequently filed and served submissions with respect to this additional ground. There was also an order by consent that the matter be decided on the papers. The submissions subsequently filed by the parties regarding ground 4 were brief.
17 For the reasons stated below, I would order that a writ of certiorari be issued quashing the decision of the Minister dated 13 February 2018.
Minister’s decision
18 As already indicated, s 501(2) of the Migration Act empowers the Minister to cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test (as defined in s 501(6)) and the person does not satisfy the Minister that he or she passes the character test.
19 The Minister’s reasons commenced by noting that the applicant had been convicted of the offence of knowingly possessing child pornography on 1 December 2008 and sentenced to 14 months’ imprisonment. The reasons continued:
As a result of the… conviction of one/or more sexually based offences involving a child, I reasonably suspect that Mr Mason does not pass the character test by virtue of s 501(6)(e) of the Act and that he has not satisfied me that he passes the character test. I find Mr Mason does not pass the character test.
The Minister also found that the applicant did not pass the character test by virtue of ss 501(6)(a) and 501(7)(c). Nothing turns on this alternative finding.
20 In his reasons, the Minister considered whether he should exercise the discretion conferred on him by s 501(2) to cancel the applicant’s visa under the following headings.
Protecting the Australian community
21 The Minister considered the above topic under the headings of “criminal conduct” and “risk to the Australian community”.
Criminal conduct
22 Regarding criminal conduct, the Minister’s reasons focussed on the applicant’s conviction for possessing child pornography. The Minister stated that he viewed the child pornography offences “as very serious” having regard to:
… the abhorrent nature of the material which Mr MASON had in his possession, his recklessness over many years in downloading the images and the consequences for children involved in the production of such material, for which Mr MASON’s actions contributed to the demand …
The Minister added that:
I find that the sentence that Mr MASON received is a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered the court viewed the offending as very serious.
23 In this context, the Minister’s reasons also noted that the applicant had been convicted of failing to comply with reporting obligations and of stealing a bicycle. With respect to the former, the Minister’s reasons noted that:
Mr MASON advises that this offence occurred when his computer automatically downloaded an update which included a chat room feature. Upon discovery of the chat feature, Mr MASON changed his email and advised the sex offender registry he had changed his email.
With respect to the latter, these reasons noted that the applicant’s “only other offence was stealing (a bicycle) in 1973, for which he was released on probation”. I interpolate that the applicant would have been aged about 15 in 1973.
Risk to the Australian Community
24 Under this heading, the Minister considered whether the applicant posed a risk to the Australian community through re-offending, having regard to “any mitigating or causal factors in his offending, and giving consideration to the steps Mr MASON has undertaken to reform and address his behaviour”, and to his “overall conduct in the custodial and non-custodial environment, and his insight into the offending”.
25 The focus of the Minister’s consideration here remained on the applicant’s conviction in 2008 for possessing child pornography. In this connection, the Minister said that:
[25] I accept that Mr MASON was sexually abused as a child and that this contributed to his offending. I also accept that a relationship breakdown and mental and physical health issues were influencing factors at the time of his offending.
[26] I have noted Mr MASON’s statements that he purposely downloaded child pornography at work as a way of seeking help as he knew he would be caught when slow server speeds were investigated. Mr MASON knew police would come to see him and he had four days to dispose of the evidence, however he did not pursue this course of action as he was seeking assistance. Instead, he gathered the evidence ready to present to police.
26 After noting the improvement in the applicant’s mental state while in prison, his participation in a self-help group, and therapy with Ms Nellie Blight, the Minister stated that:
[30] I find that Mr MASON has made progress towards rehabilitation through participation in a voluntary self-help group while in prison and through psychological treatment both before and after his release.
[31] I note that Mr MASON pleaded guilty to the charge of knowingly possess child pornography. …
27 In his reasons, the Minister also referred to the applicant’s interview with police in March 2008 in the course of which he admitted to his sexual attraction to children. The Minister’s reasons continued:
[32] Mr Mason also discussed with police his fascination with child pornography, explaining that he had spent several years accumulating what he described as his ‘collection’ or ‘library’. He stated to police that his reason for possessing the child pornography was that he was ‘interested in it. It’s a fascination. That’s basically it’.
[33] Regarding his statements to police at the time of his arrest, Mr MASON advised Forensic Psychologist Pamela Matthews, that ‘it wasn’t quite true, I was having trouble verbalising, I was just babbling, I did not explain myself very well’.
[34] I have considered a finding from Ms Matthews that Mr MASON presents with a language disorder and that in instances such as a police interview, the questioning style and social pressure of the interview must be taken into account when considering any admissions made by Mr MASON. I note that the report from Pamela Matthews, Forensic Psychologist is based on one examination with Mr MASON on 22 September 2017. I also note Ms Matthews did not have access to the police interview and cannot determine the questioning style or social pressure of the interview. I do not have access to that information either. However I have considered that Mr MASON does not claim that he did not make these statements and I find them very detailed and self-incriminating given Mr MASON’s claim that he was ‘babbling.’
28 The Minister returned to this last-mentioned matter at [40] of his reasons, where he said:
[40] I acknowledge that Mr MASON has a degree of insight into his behaviour as he indirectly sought assistance by downloading child exploitation material at work, cooperated with police and pleaded guilty. Notwithstanding advice regarding Mr MASON’s language disorder, I view with concern his efforts to characterise his statements in relation to his life-long sexual attraction to children and fascination with child pornography as ‘babbling’. I find that his actions to ensure he was caught, his preparation for police visiting him and his accumulation of this material over several years likely reinforces the accuracy of what he advised police.
29 The Minister’s reasons considered the matter of reform, in the context of which he referred to the applicant’s most recent conviction for failing to comply with reporting obligations. These reasons stated:
[38] In relation to receiving a previous warning, when asked to indicate why he re-offended, Mr MASON states he did not realise he had re-offended – “there was an accidental breach of condition which was reported. I was fined $300.00”. Mr MASON’s representative contends the resulting fine of $300 for Mr MASON’s failure to comply with reporting obligations reflects that the registry official considered it to be a minor breach.
[39] I find Mr MASON’s statement that he was unaware that his conviction for fail comply with reporting obligations constitutes re-offending demonstrates a lack of insight and awareness in relation to his conduct.
30 The Minister proceeded to consider other matters potentially relevant to the likelihood of the applicant’s re-offending, including the ongoing support of his family and colleagues, his employment, and the report made by Ms Pamela Matthews to which reference has already been made. Regarding Ms Matthews’ report, the Minister said:
[41] …I have considered a report from Ms Matthews which states Mr MASON presents as very aware that the behaviour he was charged with was inappropriate and that with treatment he has developed good insight into the emotions and surrounding circumstances/behaviours to his offending, including the role of stress in increasing vulnerability to offending and his need for intimate and non-intimate psychosocial support. I note Ms Matthew’s overall assessment that Mr MASON has improved remarkably on developing a solid network of psychosocial support over the past nine years.
…
[51] I have considered the assessment of Forensic Psychologist Pamela Matthews who finds that with treatment and lifestyle and behaviour changes, Mr MASON has moved from being a medium risk of re-offending to a low risk of re-offending. It is Ms Matthews’s opinion that ‘the risk of Mr MASON committing sexual offences against members of the Australian public is extremely low at an estimated 2-4%’.
The Minister concluded that:
[52] I find that there is an ongoing likelihood that Mr MASON will re-offend, albeit a low likelihood.
31 At the same time, the Minister acknowledged in his reasons that the applicant’s conduct indicated some insight into his original offending, stating:
[48] I acknowledge that Mr MASON has ticked yes to the question do you have any criminal conviction/s on all incoming passenger cards since his conviction on 1 December 2008 and that this demonstrates a degree of insight into and recognition of his offending.
32 With respect to “risk to the Australian community”, the Minister referred to the previous decision not to cancel the applicant’s visa and, in this context, identified the “new information” that had led the Minister to purport to re-exercise the discretion conferred by s 501(2) in the following paragraphs:
[45] I am aware that Mr MASON was previously considered for visa cancellation under section 501 of the Act. On 10 June 2009, a delegate of the Minister for Immigration and Citizenship decided not to cancel Mr Mason’s visa under subsection 501(2).
[46] Mr MASON was advised of this by letter dated 10 June 2009. The letter also warned Mr Mason that if fresh information comes to notice cancellation of his visa may be reconsidered. Mr Mason signed an acknowledgement of receipt of this warning on 16 May 2009. Mr MASON was convicted and fined $300 for fail to comply with reporting obligations on 17 February 2012.
[47] I note Mr Mason’s statement that the decision not to cancel his visa in 2009 was a great wake up call and he decided to do everything to live right.
33 Under this heading, the Minister’s reasons also identified one aspect of the submissions made by the applicant’s legal representative, which the Minister entirely rejected. These reasons stated:
[49] I have taken into consideration statements from Mr MASON’s representative acknowledging that the possession of child pornography is not a victimless crime and contributes to the existence of a market for this kind of material and therefore encourages child exploitation. I note with concern the argument that because the production of this kind of material could occur anywhere in the world, to the extent that it causes harm to members of the Australian community, that harm could be inflicted from anywhere in the world. I have considered the argument that it follows that Mr MASON’s presence or absence from Australia does not impact upon the risk to the Australian community.
[50] I also note with concern the argument from Mr MASON’s representative that that is not to say that re-offending would be without risk to the Australian community, however, because this risk is unaffected by Mr MASON’s presence or absence from Australia, the argument follows that cancellation of Mr MASON’s visa would have no protective effect on the Australian community.
…
[53] Taking the above matters into account I am mindful of the nature of the harm caused by the proliferation of child pornography, and I find that child pornography is not a victimless crime. Furthermore, I note that people who possess child pornography for their own use create a market for the exploitation of children. If Mr MASON were to reoffend in a similar fashion, his actions may contribute to a market for the production of child exploitation material.
[54] I find that if Mr MASON re-offended in a similar manner it could result in harm to children within the Australian community. Such offending contributes to the market for child pornography and it is not inconceivable that Australian children could be involved in the production of such pornography. Also, any encouragement of the market for child pornography in Australia risks increasing the presence of such material in Australia with the attendant risk that Australian children will be exposed to it and harmed as a result.
Expectations of the Australian community
34 The Minister found that the Australian community would expect non-citizens to obey Australian laws while in Australia and that, given the serious nature of his child pornography offence, the Australian community would expect that Mr Mason should not hold a visa.
Other considerations
35 Under this heading, the Minister had regard to the applicant’s ties to Australia and to the extent of the impediments he faced if he were removed. As regards the former, the Minister concluded that the applicant had been making a “positive contribution to the community for several decades through employment and voluntary activities”. As regards the latter, the Minister accepted that the applicant “left Canada as a three-year old child, has no relatives or contacts in Canada and that at the age of 59, it would be hard for him to find employment”. The Minister also accepted that if he were removed to Canada, the applicant’s risk of suicide would “escalate rapidly, thereby requiring immediate mental health care”. The Minister took the view that the applicant would suffer the same impediments if he were returned to the United Kingdom.
Conclusion
36 The Minister concluded that the applicant “has committed a very serious crime of a sexual nature” and that he and other non-citizens who commit such an offence should not generally expect to be permitted to remain in Australia. The Minister found that the Australian community should not tolerate the further risk of harm that could arise if the applicant were to re-offend in this way. The Minister found that these concerns “outweighed” the countervailing considerations, including his hardship if returned to Canada, his positive contribution to Australia, and the consequences for his family members in Australia if he were returned to Canada, and exercised his discretion to cancel the applicant’s visa under s 501(2) of the Migration Act.
Parties’ submissions
37 At the hearing on 25 October 2019, the parties addressed the first and second of the grounds identified in the applicant’s originating application. The applicant abandoned ground 3 at the hearing that day.
Submissions – ground 1
38 In support of his first ground, the applicant submitted that there was “no intelligible justification” for the Minister’s finding, at [38]-[39] of his reasons, that the applicant demonstrated a “lack of insight and awareness in relation to his conduct” when he stated that he was unaware that his conviction for failing to comply with reporting obligations constituted re-offending. This finding was, so the applicant submitted, based on the applicant’s response to information sought in his 9 November 2017 personal circumstances form. The form contained the question, “[h]ave you previously received a warning from the Department or Minister?”, and added “[i]f yes, please indicate why you reoffended”. In response to this latter request, the applicant wrote:
I do not realize I have reoffended. Since my release from prison, I have been a law abiding resident. There was an accidental breach of condition which was reported. I was fined $300.00.
39 Counsel for the applicant submitted that:
[I]n one sense reoffending might mean offending of any kind … even if it’s of a completely different character to previous offending. In another sense, many people would understand it as reoffending of a similar character to previous offending.
40 Counsel submitted that the applicant’s statement that he did not realise that he had reoffended was based on the applicant’s understanding that “reoffending” here meant offending “of a similar character to previous offending”, where the “previous offending” was possessing child pornography. In these circumstances, counsel submitted that there was no rational basis for the Minister to infer that the applicant lacked insight and awareness in relation to his conduct, which “goes further than just the most recent offending in respect of the reporting obligation”. Counsel for the applicant submitted that there was no rational basis to infer or conclude that the applicant had a demonstrated lack of insight or awareness in relation to his conduct and that in consequence the decision was affected by “illogical or irrational reasoning”, “legal unreasonableness”, or some other legal error. The error was said to be material to the Minister’s decision because the finding that the applicant lacked insight was framed as a finding with respect to his conduct and character generally, and was not expressed to be specific to his failure to comply with reporting obligations.
41 Counsel for the Minister submitted that the contested conclusion was open to the Minister based on the applicant’s response to the inquiry on the personal circumstances form. This was because the failure to comply with reporting obligations was an offence in respect of which the applicant received a conviction, even though it was less serious than the original offence. The Minister submitted that:
The Minister set out and therefore understood the Applicant’s explanation for the offending (the breach was accidental, had been reported, and only lead to a fine). The Minister took a different view of the circumstances, and decided that the Applicant’s failure to appreciate that his conduct constituted reoffending (in circumstances where the Applicant had been convicted in the Magistrates Court []), was a matter of some concern. It cannot be said that no logical or rational decision-maker could have drawn this conclusion.
42 Counsel for the Minister urged the Court to read the Minister’s reasons as a whole, observing that, in the following paragraph [40], his reasons referred to matters that the Minister considered indicated “a degree of insight” into his behaviour and, further, that paragraph [48] specifically noted that the applicant had “ticked yes to the question do you have any criminal convictions/s on all incoming passenger cards since his conviction on 1 December 2008 and stated that “this demonstrates a degree of insight into and recognition of his offending”. This was not a case, so the Minister’s counsel submitted, “where the Minister has fastened on a single factor and then given it disproportionate weight”.
43 In response to the applicant’s counsel’s submission that it was the applicant’s own reporting that caused the breach to come to the attention of the relevant authority, counsel for the Minister submitted that it was possible for the applicant to have been honest, without appreciating that what he had done was a breach of reporting obligations, which was an important post-conviction matter. Acknowledging that the Minister did not have a copy of the relevant reporting obligations at the time of making the decision under review, counsel for the Minister submitted that “the Minister [was] entitled to say that the fact of conviction and the bare description of what caused the conviction and its nature [was] enough to say” that the applicant should have understood that the offence was “not an immaterial trivial breach” and that the applicant should have understood its significance.
44 At the hearing, the Minister’s counsel departed from his written submissions regarding materiality (which had been to the effect the Minister’s finding respecting the applicant’s understanding of his offence of failure to comply with reporting obligations was a “minor part” of his reasons and therefore not material) and submitted instead that the Minister’s finding that the applicant lacked insight was material in the sense that it was a material change of circumstances enabling the Minister to re-exercise the power conferred by s 501(2).
45 In the same context, counsel for the Minister submitted that this case might be distinguished from Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; 271 FCR 595. Noting that the Minister did not “expressly assign weight to the different factors” he considered, counsel for the Minister submitted that “all of the discussion” under “Risk to the Australian Community” (paragraphs [19] to [51]) led to the conclusion in led to the conclusion in paragraph [52] that there was an ongoing, although low, likelihood that the applicant would re-offend. Counsel added:
[I]t would be better, of course, if decision-makers were so kind as to tell you which of the factors are more important than the other, but the materiality cases … show that the courts are prepared to at least read the reasons as a whole to see if there’s anything in the way reasons are expressed that gives clues as to which factors were important and which factors weren’t.
And it’s my submission it’s highly relevant that the Minister has mentioned those three matters going to insight, two showing insight, this matter showing a lack of insight. Now, what that suggests, in my submission, is that this insight was a point, but there were matters going each way.
…
[I]t is apparent from reading the reasons as a whole that certain factors … are put forward expressly as matters of concern, and that was in paragraph 40. The concern was the efforts to characterise [the] incriminating statements as [babbling]. And then the next statement is:
The actions to ensure he was caught, his preparation for the police visiting, and his accumulation of material ..... reinforces the accuracy of what he advised.
46 Counsel noted the Minister’s statements in his reasons at [51] that he had considered Ms Matthews’ report and noted her opinion that “the risk of [the applicant] committing sexual offences against members of the Australian public is extremely low at an estimated 2-4%”. Having regard to this material, counsel submitted that it was open to the Minister to make the finding he did at [77] of his reasons.
Submissions – ground 2
47 In support of ground 2, the applicant submitted that the Minister was obliged, in affording the applicant procedural fairness, to respond to his submission that because internet-based child pornography offending is not confined to geographical boundaries, any re-offending is equally capable of causing harm to the Australian community, whether or not the applicant is resident in Australia. The applicant submitted that the Minister’s reasons demonstrated a failure to engage with this submission, since the Minister had merely noted this argument “with concern”. The applicant submitted that, having regard to the Minister’s obligation under s 501G(1)(e) to set out the reasons for a decision made under s 501(2), there should be some intelligible explanation for why the submission was accepted or rejected and the consequence of such an outcome for the decision.
48 Referring to Bhullar v Minister for Immigration and Citizenship [2010] FCA 1337 at [13] and Cunliffe v Minister for Immigration and Citizenship [2012] FCA 79 at [72], the Minister accepted that there may be jurisdictional error where there is a failure to deal with a representation of substance put by a person whose visa will be cancelled. The Minister submitted, however, that whether there was such a failure was to be determined as a matter of substance, not form, citing Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141; 229 FCR 290 at [19]. After accurately recording the applicant’s submission, the Minister further submitted that it was clear that the submission was rejected, and that its very making was a cause for concern because its premise was that the applicant either would or may well re-offend. In such a case, the Minister submitted that there was no need to say anything further, citing Gbojueh v Minister for Immigration [2015] FCAFC 43; 150 ALD 1 at [19].
Submissions – ground 4
49 As already indicated ground 4 was formulated after the hearing, in the course of which the Court drew the parties’ attention to two cases then before the Full Court, neither of which had then been decided. These cases can now be cited as Minister for Home Affairs v Brown [2020] FCAFC 21; 376 ALR 133 and Makasa v Minister for Immigration and Border Protection [2020] FCAFC 22; 376 ALR 191. I also drew the parties’ attention to the possibility that Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; 247 FCR 500 might be relevant in some way.
50 As already observed, the parties’ submissions on ground 4 were brief and in writing. The applicant submitted that his case was “not on all fours” with Brown, because in that case the earlier character decision – not to cancel his visa – was made by a delegate and not the Tribunal. The applicant formally submitted that the reasoning in Brown raised doubts about Parker and submitted that the correctness of Parker should be reconsidered by a Full Court. The applicant added that ground 4 was advanced to allow this to be done.
51 The Minister formally submitted that Brown and Makasa were incorrectly decided, noting that he had applied for special leave to appeal and that the plurality in Makasa had relied on the reasoning in Brown. The Minister agreed with the applicant that Brown was distinguishable from the present case “because in this case there was no prior decision of the Administrative Appeals Tribunal setting aside a cancellation decision”. The Minister also agreed that the Court was bound to apply Parker here, and submitted that ground 4 should fail.
Consideration
52 Because of the way in which this case has been argued, it is most convenient to respond to the parties’ submissions as a whole and, in so doing, set out my reasons for decision.
53 As already stated, this is an application to review a decision of the Minister, acting personally, to cancel the applicant’s visa under s 501(2) of the Migration Act, relying on s 501(6)(e) (alternatively ss 501(6)(a) and (7)(c)) to engage that power. Section 501(2) confers a discretion on the Minister to cancel a visa if the Minister reasonably suspects that the visa-holder does not pass the character test and the visa-holder does not satisfy the Minister that he or she passes the character test. Relevantly here, under s 501(6)(e), a visa-holder does not pass the character test if a court in Australia has convicted him or her of one or more sexually based offences involving a child. As stated above, the applicant, Mr Mason, was advised less than a year after his conviction for the offence of possessing child pornography that consideration was being given to cancelling his visa under s 501. Mr Mason was later advised by letter dated 10 June 2009 that, notwithstanding his conviction for that offence, a delegate of the Minister had made a decision that his visa should not be cancelled on character grounds. As we have seen, however, on 17 February 2012, Mr Mason was convicted in the Melbourne Magistrates Court of the offence of failing to comply with reporting obligations. It is not said that this fact alone could have led the Minister again to hold a reasonable suspicion that Mr Mason did not pass the character test. Nonetheless, Mr Mason was notified after his 2012 conviction that consideration was being given once more to cancelling his visa under s 501. As we have seen, consistently with this, on 13 February 2018, the Minister, acting personally, made a decision to cancel his visa.
54 It was not in contest at the hearing that the fact said to give rise to the suspicion that must exist before the discretion in s 501(2) could arise derived from Mr Mason’s conviction in the Victorian County Court on 1 December 2008 for the offence of possessing child pornography. This was, of course, the very same fact relied on to enliven the discretion when the delegate made a decision not to cancel Mr Mason’s visa in 2009. The Minister’s decision in 2018 to cancel Mr Mason’s visa was made six years after his conviction for failing to comply with reporting obligations and almost 10 years after his conviction for possessing child pornography.
Was there power to re-exercise the discretion in s 501(2)?
55 Having regard to the above-mentioned circumstances, there is a preliminary question as to whether the Minister, acting personally, had the power to re-exercise the discretion conferred by s 501(2).
56 A similar question arose in Brown, which also involved an exercise of discretion under s 501(2). The circumstances in that case can be briefly stated. In January 2012, a decision was made by a delegate of the Minister to cancel Mr Brown’s visa under s 501(2) after the Department had notified him on two earlier occasions that decisions had been made not to cancel his visa under that provision. Mr Brown made a successful review application to the Administrative Appeals Tribunal, which made a decision under s 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth) to set aside the delegate’s decision and, in substitution, to decide that his visa should not be cancelled. Some years later, Mr Brown was convicted in the Magistrates Court of a number of summary offences. On 1 May 2018, the Minister, acting personally, made a decision to cancel his visa under s 501(2) of the Migration Act, relying on s 501(6)(a) to engage the power. The Full Court dismissed an appeal from a judgment quashing the Minister’s decision, with Allsop CJ, Kenny and Banks-Smith JJ holding that the Minister had no power to re-exercise the discretion under s 501(2) relying on the same facts to enliven the discretion as were before the Tribunal. Their Honours reached this conclusion having regard to the terms and structure of the Migration Act as a whole, the existence of the power in s 501A(2) to set aside the Tribunal’s decision, and the nature and character of the function of the Tribunal in independent review of decisions of the Executive, including the necessary degree of stability and finality in a fully reasoned decision of the Tribunal setting aside a decision of the Minister by his delegate to cancel the applicant’s visa: see Brown at [15].
57 The same point arose in Makasa, where again the Full Court held that the Minister had no power to re-exercise his discretion under s 501(2) to cancel Mr Makasa’s visa in circumstances where the Minister (acting through his delegate) had already exercised the power of cancellation, such cancellation had been set aside by the Tribunal, and where the Minister relied on the same facts as the Tribunal to enliven the discretion in s 501(2).
58 I interpolate here that the High Court (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ) unanimously dismissed the Minister’s appeal from the judgment of the Full Court in Makasa at the conclusion of the appeal hearing on 12 November 2020: see Minister for Immigration and Border Protection v Makasa [2020] HCATrans 190 (12 November 2020). The Court is yet to deliver its reasons.
59 This is not a case in which the Minister has sought to re-exercise the discretion in s 501(2) to cancel a person’s visa where the Tribunal has previously set aside the decision of the Minister, through his delegate, to cancel the visa under s 501(2), there being no new facts or circumstances to re-enliven the power. Indeed, since the decision in this case was made by the Minister personally under s 501(2), it is not subject to Tribunal review. Nor is it subject to a form of reconsideration akin to that for which ss 501C(4) and 501CA(4) provide. This case is not therefore affected by precisely the same considerations as in Brown. It may therefore be accepted that the decisions in Brown and Makasa are distinguishable from the present case.
60 Nonetheless the reasons for judgment of the plurality in Brown are relevant to the present enquiry. As Allsop CJ, Kenny and Banks-Smith JJ said in Brown at [91], s 33(1) of the Acts Interpretation Act 1901 (Cth) creates an implication that, subject to the manifestation of “a contrary intention”, a statutory power may be exercised repeatedly in relation to different individuals or different subject matters: see further regarding s 33(1), Brown at [63]-[65], [71]-[74], [109], [117], [150], [158], [162], [170]. Whether a relevant contrary intention is disclosed involves a process of statutory construction, which commences with the statutory text and takes account of the context and purpose of the statutory provisions under consideration. As was said in Brown at [92], “[u]ltimately, the meaning and operation of these provisions is affected by constructional choices that involve the balancing of the legal policy considerations immanent within the statute”.
61 In Brown, especially at [52]-[77], Allsop CJ, Kenny and Banks-Smith JJ discussed the authorities concerning the re-exercise of the discretion in s 501(2) and in analogous provisions of the Migration Act, including Parker and the other authorities in its line such as Burgess v Minister for Immigration and Multicultural Affairs [2000] FCA 926; 101 FCR 58, VQAR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 900, and Minister for Immigration and Multicultural Affairs v Watson [2005] FCAFC 181; 145 FCR 542. Their Honours also considered the context and purpose of s 501(2) and a variety of related provisions. It is unnecessary to repeat this analysis. Of particular relevance here is their Honours’ discussion following this analysis, concerning the re-exercise of the discretion conferred by s 501(2) of the Migration Act:
62 In Brown at [109]-[110], Allsop CJ, Kenny and Banks-Smith JJ stated:
For the purposes of this appeal, it may be accepted that the power conferred by s 501(2) – to exercise a discretion as to whether or not to cancel a visa – is exercisable from time to time with respect to a particular individual (at least where there are new facts or circumstances) until the choice is made to cancel that individual’s visa: see MJD Foundation [Ltd v Minister for Indigenous Affairs [2017] FCAFC 37; 230 FCR 31] at [172] (Mortimer J, Perry J agreeing). Where that choice is made, however, the power in s 501(2) cannot be exercised again with respect to that individual. The provisions of the Migration Act foreclose this possibility and, in this way, also manifest a contrary intention for the purposes of ss 2(2) and 33(1) of the Acts Interpretation Act [1901 (Cth)] …
For these reasons and as decided in Parker, it may be accepted that a decision of the delegate made under s 501(2) not to cancel a visa of a particular individual does not foreclose the possibility that a subsequent decision may be made to cancel that visa. Considerations of this kind led Griffiths and Perry JJ to hold in Parker that s 501A was not the only source of power to revisit an earlier decision made by a delegate not to cancel a visa … By contrast, for the reasons already stated, a decision made under s 501(2) to cancel a visa brings the power exercisable under s 501(2) to an end.
(Emphasis in original)
63 The careful reader will note the reference in this passage to s 501A of the Migration Act. This reference reflects the fact that Parker also concerned the relationship between s 501 and s 501A. It is important to appreciate this relationship because it has a bearing on the outcome in this case, as will be seen hereafter.
64 Section 501A applies where (amongst other things) a delegate makes a decision not to exercise the power to cancel a visa under s 501(2): see s 501A(1)(a) and (d). It suffices to note here too that the provision also has an operation where the Tribunal makes a decision not to cancel a visa holder’s visa under s 501(2). Section 501A(2) empowers the Minister, acting personally, to set aside the delegate’s decision and cancel a visa that has been granted to the relevant visa holder if:
(c) the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
(d) the person does not satisfy the Minister that the person passes the character test; and
(e) the Minister is satisfied that the … cancellation is in the national interest.
65 For present purposes, I also note that s 501A(3) empowers the Minister, acting personally, to set aside the delegate’s decision and to cancel a visa granted to the relevant visa holder in substance on the grounds set out in paragraphs (c) and (e) above: see ss 501A(3)(c) and (d). The rules of natural justice do not, however, apply to an exercise of power under s 501A(3). A decision under either of these provisions is not subject to review under Part 5 or 7 of the Migration Act. The Minister is under no duty to consider whether to exercise power under s 501A(2) or (3): see s 501A(6).
66 Plainly enough, s 501A specifically addresses the circumstances in which the Minister, acting personally, can reconsider a decision of a delegate not to cancel the visa held by the visa holder under s 501(2) of the Migration Act: see ss 501A(1)(a) and (d). Sections 501A(2) and (3) empower the Minister to reconsider such a decision providing the conditions for the exercise of power in each case are satisfied. Amongst other things, it is a condition under both provisions that the Minister is satisfied that the cancellation is “in the national interest”. That is, whilst it is clear that Parliament intended that the Minister, acting personally, would have the ultimate power to decide whether a visa holder should continue to have a visa, the Minister’s exercise of power was subject to this heightened requirement, amongst others: see Brown at [112].
67 If s 501(2) of the Migration Act were construed so as to confer a power on the Minister, acting personally, to re-exercise the discretion conferred by s 501(2) on the same facts and circumstances as those before the delegate, then ss 501A(2) and (3) would be rendered otiose wherever the “original decision” (see s 501A(1)) was made by a delegate. Whenever the Minister disagreed with the delegate’s decision not to cancel the visa holder’s visa, the Minister, acting personally, could re-exercise the power conferred by s 501(2) to cancel the visa. The Minister would not be obliged to act under s 501A to set aside the delegate’s decision before cancelling the visa holder’s visa, having first satisfied the conditions for an exercise of the power in ss 501A(2) or 501A(3), including the national interest criterion. Clearly enough, this would be inconsistent with the legislative scheme, given that ss 501A(2) and 501A(3) are specifically directed to the substitution of the Minister’s personal decision for that of the delegate only where the conditions in those provisions are met. In order to resolve this inconsistency, some adjustment must be made to the meaning of the competing provisions: see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [70].
68 Parker held in effect that s 501(2) be impliedly limited so as not to interfere with the express operation of s 501A(2) (and by implication s 501A(3)). Their Honours in Parker held, in substance, that in order for the Minister to re-exercise the power in s 501(2), a new fact must have arisen since the delegate’s decision that potentially bears upon the exercise of the power under s 501(2): see Parker at [36]-[37].
69 In Parker, the appellant submitted that the words “may cancel” in s 501(2) implied a singular action, which meant that once a decision was made not to cancel a visa under s 501(2), the power to cancel was spent, at least where the same factual basis for the making of the original decision endures and there were no new relevant facts: see Parker at [32]. The Full Court rejected this submission. The reasons of Griffiths and Perry JJ (with whom Mortimer J agreed) emphasised that a “significant new fact” had emerged since the delegate had first considered cancellation of the applicant’s visa under s 501(2). This “new fact” was the appellant’s conviction in his absence by the New South Wales Local Court of a summary offence under the Weapons Prohibition Act 1998 (NSW), for which he was fined $700. This was referred to in their Honours’ reasons as the 2014 conviction.
70 Their Honours said (at [34]-[37]):
It is significant to note that the appellant’s submissions regarding the proper construction of s 501(2) were predicated on the notion that the same express factual basis exists when the initial decision was made not to cancel the visa as is the case subsequently when the matter is reconsidered. That is not the case here. Unlike the position at the time of the delegate’s decision in February 2014 not to cancel the appellant’s visa, the Minister had before him on 2 March 2016 a significant new fact, namely the 2014 conviction. This fact was relied upon by the Minister in determining to exercise his discretion to cancel the visa. As emphasised above, the Minister’s reliance upon this fact did not inform his assessment of the character test, but rather informed the exercise of his discretion once he was reasonably satisfied that the appellant did not pass the character test based upon the 2010 conviction. The circumstances had changed when the question of cancelling the appellant’s visa was revisited in 2015.
…
In our view, in a case such as the present, where a new relevant fact emerges which potentially bears upon the exercise of the power under s 501(2), that power may be exercised in an appropriate case to cancel a person’s visa notwithstanding that there was an earlier decision based on more limited facts not to cancel the visa. That construction is consistent with s 33(1) of the [Acts Interpretation Act]:
33 Exercise of powers and performance of functions or duties
Powers, functions and duties may be exercised or must be performed as the occasion requires
(1) Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires.
No contrary intention is manifested in the Migration Act to displace the presumption created by s 33(1)…
(Emphasis added)
71 In separate, concurring reasons at [70] Mortimer J also emphasised the significance of the new facts and circumstances in that case: see also Assad v Minister for Home Affairs (No 2) [2019] FCAFC 214 at [31].
72 This is consonant with the need to accord the appropriate level of flexibility to the operation of the provision: see Brown at [29]. At the same time, it cannot have been Parliament’s intention that a person’s immigration status would be left “uncertain and subject to the discretion of the Minister, for an indeterminate period” after a decision not to cancel a visa under s 501(2) had been made, given that such uncertainty might well create “an unsatisfactory and potentially inhumane contingency about that person’s life in the Australian community”: see Brown at [30]. It is evident that a decision to cancel a visa under s 501(2) may have devastating consequences not only for the visa holder but also for the visa holder’s family and the community generally.
73 In summary, Parker and Brown show that the decision of a delegate under s 501(2) not to cancel a person’s visa does not foreclose the possibility that a delegate or, as here, the Minister, acting personally, may re-exercise the power conferred by s 501(2) with respect to the visa on another occasion even where the facts or circumstances relied on to enliven the discretion are the same as before, providing a new fact or circumstance has arisen that potentially bears on the exercise of the discretion. Of course, where a new fact or a different circumstance is relied on to enliven the power in s 501(2), there can also be a new exercise of the discretion.
74 In Mr Mason’s case the new fact that arose after the delegate’s decision in June 2009 not to cancel his visa under s 501(2) was Mr Mason’s conviction for failing to comply with reporting obligations, for which he was fined $300. Whether a new fact or circumstance is relevant (and can therefore potentially bear on the exercise of the discretion in s 501(2)) must be assessed by reference to the subject matter, scope and purpose of the relevant statutory provisions. The exercise of power in s 501(2) is referable in the first instance to a reasonable suspicion about a visa holder’s failure to pass the character test. Section 501(6) contemplates that a variety of facts and circumstances (including facts about the visa holder’s criminal conduct) may be relevant to this test and, by extension, to the subsequent exercise of discretion. In this context, facts and circumstances about a criminal conviction could therefore potentially bear on the exercise of power. Mr Mason’s 2012 conviction for failing to comply with reporting obligations was new, and also potentially relevant to the exercise of the discretion in s 501(2). Having regard to this new and potentially relevant fact, it was therefore open to the Minister to re-consider the cancellation of Mr Mason’s visa, on the basis that his previous conviction for possessing child pornography continued to engage the power in s 501(2).
75 For the following reasons, the fact that Mr Mason’s 2012 conviction was a new and potentially relevant fact enabling the Minister to re-exercise the power in s 501(2) also meant that the 2012 conviction became a mandatory relevant consideration in the Minister’s decision making.
76 The factors that a decision maker is obliged to consider in making a decision are determined as a matter of statutory construction, having regard to the subject matter, scope and purpose of the statutory provision conferring the discretion: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-41; Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; 230 FCR 367 at [40]-[41]. As a matter of statutory construction, the 2012 conviction was highly material to the Minister’s exercise of power in 2018. The Minister’s power to re-exercise the discretion in s 501(2) to cancel Mr Mason’s visa, notwithstanding the delegate’s previous decision in 2009 not to do so, would have been confined to the more qualified power conferred by ss 501A(2) or 501A(3), but for the 2012 conviction. It would be inconsistent with the evident purpose of these two provisions, both of which include a national interest criterion, if the Minister could re-exercise the power conferred by s 501(2) by merely pointing to some new fact or circumstance of potential relevance without also being required to consider that fact or circumstance in the subsequent decision making under s 501(2). These provisions give rise to a strong implication that, in re-exercising the power conferred by s 501(2), the decision maker must take into account the new fact and its bearing, if any, on the other matters that fall for consideration, including the matter that led the decision maker reasonably to suspect that the visa holder did not satisfy the character test. When this is done, it is, of course, for the decision-maker, not the Court, to determine the particular weight to be given to the factors that fall for consideration.
Was there jurisdictional error?
77 The further question is whether the Minister’s reasons considered by reference to the material before him at the time he made the challenged decision disclose jurisdictional error. As we have seen, the applicant’s ground 1 raised the question whether the Minister’s decision was legally unreasonable in a specific respect. It may be thought that the applicant’s ground 4 also raised other related matters, although not with the clarity that one would expect where counsel is involved.
Legal unreasonableness
78 Legal reasonableness or an absence of legal unreasonableness is essential to the lawful exercise of a statutory power: see Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, at [26], [29] (French CJ); [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J). As Allsop CJ said in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [2] “any attempt to be comprehensive or exhaustive in defining when a decision will be sufficiently defective as to be legally unreasonable and display jurisdictional error is likely to be productive of complexity and confusion”. To put the following analysis in more conventional terms, however, there was in this case an absence of evident and intelligible justification in an important finding and in the decision as a whole: see Li at [76] (Hayne, Kiefel and Bell JJ).
79 I accept, as I must, that the standard for error on the basis of unreasonableness is a demanding one. As the Minister submitted, this proposition has been affirmed in numerous authorities over recent years: see, for example, CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [60]-[61] and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30](5). Bearing this in mind, there are two main considerations that lead me to conclude that the Minister’s decision was unreasonable in the legally relevant sense. First, although the Minster relied on the 2012 conviction to re-exercise the power conferred by s 501(2) to cancel Mr Mason’s visa, the Minister’s limited finding about this matter was unsupported by probative evidence. Secondly, apart from the fact that the 2012 conviction was capable of supporting the re-exercise of the power, as we shall see, the significance of this conviction in the context of the Minister’s decision-making was not the subject of any proper, genuine and realistic consideration. This was because the focus of the Minister’s consideration was on Mr Mason’s previous offence, possessing child pornography, which had founded the delegate’s earlier consideration of the exercise of the discretion in 2009. In this context, moreover, the Minister gave no consideration to the effect on Mr Mason, his family and the Australian community more generally of the administrative process to which Mr Mason was subject, the outcome of which was that, in the decade after the 2008 conviction and in the six years after the 2012 conviction, Mr Mason had been a lawful resident of Australia.
No probative evidence for lack of insight finding
80 The Minister made only one finding about the 2012 conviction. This was the finding that Mr Mason’s statement that he did not realise that he had re-offended disclosed “a lack of insight and awareness in relation to his conduct”. As explained below, there was no probative evidence of any lack of insight into the conduct that constituted Mr Mason’s failure to comply with his reporting obligations, this being the conduct to which I understand the Minister refers.
81 Mr Mason’s statement in his personal circumstances form was to the effect that he had not been aware that he had reoffended. He had added, apparently by way of explanation, that “there was an accidental breach of condition which was reported. I was fined $300.00”. It may be that, as his counsel submitted, Mr Mason’s answer was a product of the fact that he understood the reference to “reoffending” in the personal circumstances form to be a reference to further offending in the nature of his original offence (possessing child pornography). Reference to the 6 November 2017 submissions made to the Minister by Mr Mason’s legal representatives (see [112] below) indicates this was how his lawyers understood the term “re-offending”. If so, it was only natural that Mr Mason accept their opinion on what might be regarded as a legal issue.
82 Equally, however, it seems to me that Mr Mason may have been intending to communicate that he did not know at the time he downloaded the relevant software onto his computer or immediately thereafter that he had failed to comply with his reporting obligations because his acts were accidental and when he realised what he had done, he immediately sought to remedy the problem.
83 In fact, precisely what Mr Mason intended to convey was unclear, in large part because the material before the Minister (and therefore the court) did not include any information about Mr Mason’s reporting obligations or about the Magistrates Court proceeding in which Mr Mason was convicted and fined. The information before the Minister about the 2012 conviction was limited. Apart from Mr Mason’s statements in his personal circumstances form, there was an entry in a National Police Certificate referring to the conviction, and identifying the court, court date and court result. Plainly enough, this information did not indicate anything about the level of Mr Mason’s “insight” into the offence.
84 The material placed before the Minister by Mr Mason and legal representative was in substance all to the same effect. On this account, he accidentally downloaded software with a chat feature; and as soon as he became aware that he had such a feature, he removed it and notified the relevant authority of a consequential change in his email. He recounted these events to the authority at his subsequent annual review. The relevant authority considered that by reason of these events he had failed to comply with his reporting obligations. I interpolate that since there was no information about Mr Mason’s reporting obligations before the Minister, there was nothing to indicate why the authority took this view.
85 Ms Matthews’ report of 1 October 2017, which was before the Minister, stated:
About his breach of the Registry conditions, he had an old version of MSN on his computer and had updated it, he didn’t know it had a chat component until his niece who was having trouble with her boyfriend contacted him via this way over Christmas. “A chat thing popped up … I didn’t know it had that component”. He deleted MSN and set up a new email service and reported to the Registry he had done so. He did not think to report his experience of the pop up chat function at the time but did so in his recount of why he had changed his email, at his annual review appointment. He was breached and it went to Court, “the Judge had trouble understanding what I had done”. He was convicted and fined $300.00.
Although Ms Matthews expressed an opinion about Mr Mason’s insight into his offence of possessing child pornography, she did not consider it necessary to express an opinion about his insight into this particular matter.
86 I have already referred to Mr Mason’s (undated) statement about the events leading to the 2012 conviction at [10] above, which provided substantially the same information as Ms Matthews’ report.
87 The information sent to the Department by Mr Mason’s representative (and before the Minister) was also to much the same effect. In a letter to the Department dated 6 November 2017, Mr Mason’s legal representative stated:
In December 2012, Timothy had his internet system upgraded by his provider MSM. Unbeknown to him, this upgrade created a chatroom. He only found that out by accident when he communicated to his niece in Adelaide and the chatroom feature popped up. He immediately removed the feature.
As an honest person, Timothy voluntarily reported this incident to the Sex Offenders Registry as part of his annual review.
The Registry considered it to be a breach of his condition. He was fined $300.00. But it was an oversight on Tim’s part. He did not attempt to hide it.
(Bold in original)
In an email to the Department dated 8 November 2017, the representative stated:
The only minor breach was an accidental incident as a result of upgrading of his computer system by MSM which triggered a chatroom. Mr Mason volunteered the disclosure when he reported to the Sex Offender Registry. He was fined $300.00 for the breach.
88 None of this material provided any probative evidence for the Minister’s finding that Mr Mason lacked insight into his impugned conduct. The position may have been different if, at the time he made his decision, the Minister had information about the reporting obligation with which Mr Mason had not complied, being the basis of Mr Mason’s 2012 conviction. Without this information however, the Minister could not know what it was that Mr Mason had failed to do and whether this failure in truth demonstrated a lack of insight, notwithstanding on Mr Mason’s unchallenged account (which the Minister mentioned at [14] of his reasons) that his action in downloading the chat feature was accidental, he deleted it on ascertaining it was there, and reported to the relevant authority that he had changed his email address immediately thereafter. The finding therefore lacked evident and intelligible justification, as counsel for Mr Mason submitted.
89 As the Minister acknowledged in argument, this finding (at [39] of the Minister’s reason) fell under the heading “Risk to the Australian Community” and was part of the discussion of the nature of the risk that Mr Mason posed to the Australian community if he were to continue to reside in Australia.
90 The issue about risk arose because the Minister chose to be guided by Direction No 65 in making his decision. This Direction identified various issues for consideration in determining whether a visa should be cancelled, including “whether the non-citizen represents an unacceptable risk of harm to individuals … in the Australian community”. The Direction provided that in considering the risk to the Australian community, consideration should be given to the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account information and evidence of the risk of the non-citizen re-offending; and evidence of rehabilitation achieved by the time of the decision…”.
91 The discussion about whether Mr Mason represented an unacceptable risk to the Australian community was critical to the Minister’s reasons and led to the Minister’s cancellation decision. The Minister found (at [77]) that the community could be exposed to great harm if Mr Mason were to re-offend in a similar way to his 2008 offending; (at [78]) that this conclusion outweighed countervailing considerations against cancellation; and (at [80]) Mr Mason represented an unacceptable risk of harm to the Australian community, which led to the Minister’s ultimate decision that Mr Mason’s visa should be cancelled. In setting forth his ultimate conclusion, the Minister’s reasons stated:
[76] Mr MASON has committed a very serious crime of a sexual nature, that of knowingly possess child pornography and Mr MASON and non-citizens who commit such an offence should not generally expect to be permitted to remain in Australia.
[77] I find that the Australian community could be exposed to great harm should Mr MASON re-offend in a similar fashion. I could not rule out the possibility of further offending by Mr MASON. The Australian community should not tolerate any further risk of harm.
[78] I found the above conclusion outweighed the countervailing considerations in Mr MASON’s case, including his claims that he will suffer hardship if returned to Canada …
…
[80] In reaching my decision I concluded that Mr MASON represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations...
(Emphasis added)
92 As counsel for the Minister recognised, Splendido involved a not dissimilar issue in this connection. In that case a finding that Mr Splendido posed an unacceptable risk to the Australian community because of the likelihood that he would re-offend was also critical, leading the Assistant Minister to decide not to revoke a decision to cancel his visa under s 501CA. Justice Mortimer (with whom Moshinsky J agreed) held that, having decided to place this finding at the forefront of his reasons, the finding was required to be based on probative material: see Splendido at [52]. In that case, her Honour found (at [82]) that “[w]hat occurred was speculation and guesswork about what those prior convictions indicated about Mr Splendido’s future conduct”. In separate reasons, Wheelahan J substantially agreed: see Splendido at [132].
93 Splendido is, of course, a different case from the present, and the current discussion has focussed on only one of a number of matters on which the Minister relied in reaching the critical conclusion in this case. This was why counsel for the Minister emphasised the other factors to which the Minister referred in his discussion of the risk posed to the Australian community by Mr Mason, noting that the Minister did not expressly assign any particular weight to the different factors. The difficulty with counsel’s argument is, however, that the 2012 conviction was material in the sense that it was the new fact that had arisen since the delegate’s non-cancellation decision, some potentially relevant new fact being required as a matter of statutory construction before the Minister might re-exercise the power conferred by s 501(2): see [63]-[76] above. It was also the most recent potential indication that Mr Mason might pose a risk to the community. The Minister’s only finding about this conviction – that Mr Mason lacked insight and awareness in relation to his offending conduct – was therefore a significant one. The fact that the Minister considered this factor to be important in assessing the matter of risk is also implicit in the Minister’s reasons at [42], where the Minster referred to the representations that had been made on Mr Mason’s behalf, before stating that “I have considered that Mr Mason does not believe he will ever re-offend as he is rehabilitated…”. It may inferred that any weight that the Minister attached to Mr Mason’s stated beliefs about his rehabilitation would have been affected by the Minister’s finding that Mr Mason lacked insight into the conduct leading to the 2012 conviction. Bearing in mind the significance of the 2012 conviction, one cannot infer that a finding as to Mr Mason’s lack of insight had negligible weight in the Minister’s consideration. Rather, it may reasonably be assumed that the finding contributed to some material extent to the Minister’s critical conclusion that Mr Mason’s continued presence in Australia represented an unacceptable risk of harm to the Australian community.
94 As we have seen, however, the fact of his conviction did not support the finding that he lacked insight into his offending conduct. Without information about the reporting obligation that Mr Mason had breached, the Minister could not know what precisely Mr Mason had been obliged, but failed, to do. In these circumstances, it is very difficult to see how the Minister could have made any proper, genuine and realistic evaluation of Mr Mason’s account of his offending conduct. Further, concerning the 2012 conviction, the Minister’s reasons contain only a brief statement about Mr Mason’s account of his conduct (at [14] and [38]) and the lack of insight finding (at [39]). It may be inferred from the fact that the Minister gave such limited attention to these matters that he did no more than advert to Mr Mason’s account about the conduct that led to his 2012 conviction. I return to this matter below.
95 At the hearing, counsel for the Minister stated that, in so far as the reporting conditions breach was concerned, all that was before the Minister was the “fact of conviction and a description”. There is no reason to doubt the correctness of this statement. It seems probable, however, that the Minister would have been aware that the information about Mr Mason’s reporting obligations could have been readily obtained, at least by a simple enquiry addressed to the relevant State authority responsible for administering Mr Mason’s compliance. Such an enquiry would have directed attention to the fact that Mr Mason was sentenced pursuant to the Registration Act, since his conviction for possessing child pornography was a registrable offence under that Act. As explained below, reference to the Registration Act would have disclosed Mr Mason’s reporting obligations, what he was obliged but failed to do, and the nature of his offending.
96 Reference to the court book prepared by the Minister for this matter also indicates that this information might have been obtained even without an enquiry of the relevant State authority. This is because the court book contains a copy of a criminal record generated by Victoria Police dated 15 June 2015 stating that when Mr Mason was convicted of possessing child pornography, he was sentenced to “a registrable offence pursuant to the Sex Offender Registration Act 2004 and…to report to Victoria Police for a period of 8 years”. It may be inferred from the fact that the Minister prepared the court book including this document (and some other documents mentioned below) that the document was in the Department’s possession at the time the Minister made his decision. If so, then the Victoria Police record was also to be treated as being in the possession of the Minister: see Peko-Wallsend at 31. This record should have indicated that reference to the Registration Act would assist in identifying the nature of the offending that was reflected in Mr Mason’s 2012 conviction and in assessing his claims about it.
97 Although nothing specifically turns on most of these matters, I observe at this point that, in addition to the features of Splendido to which I have already referred, there were other ways in which this case resembled that case. As in Splendido, the Minister’s reasons are dated the same day as the circled note indicating the exercise of power (13 February 2018). Justice Mortimer’s comment (at [23]) that “[t]heir length and content founds an inference that they were drafted and prepared before the [] Minister indicated how he proposed to exercise the power” is also applicable in this case. As in Splendido, there were no sentencing remarks available in connection with the 2008 offence of possessing child pornography, although the Minister did have access to and rely on an undated Victoria Police Summary of Charges attached to a Victoria Police, Department of Immigration and Border Protection Information Sheet. In this connection, I observe that Ms Matthew’s report opined that “[t]he Police documentation … is of poor quality …” and set out her reasons for this view. Further, as in Splendido, the evidence about what precisely was before the Minister when he made his decision was unclear. The parties presented their arguments at the hearing on the basis that the Ministerial submission date stamped 29 January 2018 and its attachments, including the documents marked “Attachment A” through to “Attachment AM” in the index to the court book comprised the material before the Minister. There were other documents in the court book, however, such as the Victoria Police criminal record dated 15 June 2015 to which I have referred, the relevance of which was not discussed by the parties. As I have already indicated, it was unclear whether the 15 June 2015 document was in fact physically before the Minister when he made his decision, although it and other documents (e.g., a police record dated 27 September 1973 and emails between the applicant’s legal representative and the Department) were included in the court book by the Minister and, so it may be inferred, were in the Department’s possession at the time of the decision.
98 It may be said that, in the circumstances of the case, the Minister’s failure to enquire about the nature of Mr Mason’s reporting obligations and what he was obliged but failed to do was unreasonable in itself in the sense that no reasonable decision-maker would have proceeded to make a decision of the kind the Minister did without obtaining this information: see, e.g., Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 at [20]-[25] and Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22 at [50]-[51]. It is, however, unnecessary to explore this issue further as it seems to me the above discussion indicates an even more significant issue.
99 For the reasons already stated at [74]-[75], the Minister was bound, as a matter of statutory construction, to take the 2012 conviction into account in making his decision in 2018, including Mr Mason’s claims about it and the relevance of the conviction, if any, on the other matters that fell for the Minister’s consideration. Reading the Minister’s reasons fairly and as a whole, however, the Minister gave very limited attention to the 2012 conviction. Instead, the Minister focussed almost entirely on Mr Mason’s conviction for possessing child pornography in 2008 and, in substance, ignored the circumstances that were said by Mr Mason to relate to his conviction for failing to comply with reporting obligations in 2012, notwithstanding that the former would necessarily have been the focus of the delegate’s decision in 2009, and the latter was highly material because it was the only fact relied on to enable the Minister to re-exercise the power in s 501(2) and cancel Mr Mason’s visa.
100 As we have seen, the Minister mentioned the 2012 conviction in his reasons when he referred to Mr Mason’s account of his offending conduct at [14] and [38]; and to Mr Mason’s statement in his personal circumstances form (at [38]), finding (at [39]) that Mr Mason’s statement about re-offending disclosed a lack of insight. The Minister also took into account that Mr Mason had not offended since his 2012 conviction (at [21]). It does not seem to me that the lack of insight finding, these brief references to what Mr Mason said about the offending, without more, and the Minister’s statement at [21] of his reasons, were sufficient to constitute a legally sufficient consideration of the 2012 conviction in the circumstances of this case.
101 As the Full Court in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 at [46]-[47] observed:
Mere advertence to a matter required to be taken into consideration may not be sufficient to establish that it has been properly considered: cf. Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113 at [100], (2011) 179 LGERA 458 at 478 per Cowdroy J. The serious consequences confronted by an individual who has had a visa cancelled pursuant to s 501 may well require, in an appropriate case, such a conclusion being reached. Even a ritualistic incantation of a risk being, for example, an “unacceptable risk” or a “grave and serious risk”, may not be sufficient to clothe a statement of reasons with impunity.
The reasons provided in every case must each be considered by reference to the facts of each particular case and must all be construed in a practical and common-sense manner and not with “an eye keenly attuned to the perception of error”: cf. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 to 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
(Italics in original)
102 This was a case where the Minister did no more than advert to Mr Mason’s claims about his failure to comply with reporting obligations and did not actively engage in evaluating the relevance of the 2012 conviction for the exercise of the discretion in s 501(2). As explained, the Minister was required to do more to satisfy the obligation to consider the new fact relied on to enliven the power to re-exercise that discretion in the circumstances of this case.
103 In Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352, the Full Court was required to consider whether the Minister had failed to give “proper, genuine and realistic” consideration as to whether the applicants’ visas should be cancelled under s 501(3). The Full Court cautioned at [34] that:
The danger of using that or similar expressions has been emphasised in many cases in other contexts. For example, when the expression has been used in conjunction with the ground of judicial review relating to the failure to take into account a mandatory relevant consideration, courts have acknowledged that its use carries the risk of creating “a kind of general warrant, involving language of indefinite and subjective application, in which the procedural and substantive merits of any Tribunal decision can be scrutinised”…
104 After a careful examination of the authorities, the Full Court affirmed the principle that when a decision maker is required by statute to consider a claim or other mandatory criteria, the decision maker must engage in an active intellectual process directed at that claim or criteria: see Carrascalao at [35], [45]. The Court explained (at [45]-[46]) that:
This does not require the decision-maker to refer in the reasons for decision to every piece of evidence and every contention made by an applicant, and it may be that some material provided will not be relevant to the criteria. Also, in accordance with well-known authority, the reasons of the decision-maker should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ, as cited in Khadgi at [63] and Telstra v ACCC at [62]).
…[U]nder s 501(3), the Minister has a discretion to cancel a visa if the Minister reasonably suspects that the person does not pass the character test and is satisfied that the cancellation is in the national interest. … In our view … the ordinary meaning of the word “consider” in this judicial review context requires the Minister to engage in an “active intellectual process” in assessing the merits of a case when contemplating the possible exercise of the power under s 501(3).
105 As the Full Court observed, to answer the question whether there had been an active intellectual process, a reviewing Court is required to make an evaluative judgment, “taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case”: see Carrascalao at [47]. Of course, as the Full Court there said (at [48]) “a finding … that the Minister has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”.
106 Each case will depend on its own facts and circumstances. In this case, I have accepted that the Minister’s lack of insight finding was an adverse finding relating to the 2012 conviction that contributed to some material extent to the Minister’s critical conclusion that Mr Mason’s continued presence in Australia represented an unacceptable risk of harm to the Australian community. As already stated, this finding was not based on any probative evidence. There was no other occasion when it could be said that the Minister showed that he was actively involved in assessing the relevance of the 2012 conviction to the exercise of his discretion under s 501(2).
107 In this case, as we have seen, Mr Mason’s account of his conduct leading to his 2012 conviction was clearly and consistently set out by him, in statements made by his representative on his behalf, and in Ms Matthews’ 1 October 2017 report: see [10], [38], [80], [83], [85], [87] and [88] above. These were apparently before the Minister at the time he made his decision.
108 Other than to recite what Mr Mason said about the offending and to opine that his statement on his personal circumstances form showed “a lack of insight” in relation to his conduct, the Minister’s reasons do not engage at all with Mr Mason’s account of what had happened. Further, the absence of any reference to the nature of the reporting obligations, including the nature of his breach, emphasises that the Minister did not actively set out to evaluate Mr Mason’s account, the nature of the offence for which he had been convicted in 2012, and the relevance of that conviction to the exercise of his discretion.
109 Reference to the Registration Act shows that it provides for the offence of failing to comply with reporting obligations. In particular, s 46(1) of the Registration Act (as it stood at the time of Mr Mason’s 2012 conviction) provided that that “[a] registrable offender must not fail to comply with any of his or her reporting obligations without a reasonable excuse”. The maximum penalty for the offence was 5 years imprisonment. “Reporting obligations” were the obligations imposed on a registrable offender by Pt 3 of that Act. The obligations in Pt 3 were diverse and wide-ranging. Plainly enough, the seriousness of any offending conduct would vary according to the nature of the reporting obligation that was breached and the circumstances in which it was committed, as well as other considerations. Relevantly here, Pt 3 included the obligation that a registrable offender report to the Chief Commissioner of Police “any change in his…personal details within 14 days after that change occurs”: see s 17(1). The “personal details” which must be reported range from any “instant messaging user names” or “chat room user names” used or intended to be used through the Internet (s 14(1)(dd)(ii) and (iii)) to “the names and ages of any children who generally reside in the same household” as the registrable offender (s 14(1)(e)).
110 If Mr Mason’s account were accepted, the conduct which apparently led to his conviction for failing to comply with reporting obligations under s 46 of the Registration Act was his failure to report to the Chief Commissioner of Police, within 14 days, the instant messaging or chat room user name he used when he spoke to his niece. In this case, the fine imposed on Mr Mason was indicative of the fact that the sentencing Court considered his offence was at a very low level of seriousness. Of course, whether Mr Mason’s account of his offending was accepted for the purpose of the decision making under s 501(2) was a matter for the Minister. The significance of the conviction for such an offence for the exercise of the discretion in this provision was also a matter for the Minister. So too the significance of the 2008 conviction was a matter for the Minister, and the Minister was not obliged to accept any of Mr Mason’s submissions. Reference to the Registration Act confirms, however, that the Minister could not make a finding with respect to Mr Mason’s 2012 conviction, its relevance for his discretion, Mr Mason’s statements about it, or Mr Mason’s insight into the offending without having regard to the nature of Mr Mason’s offending, which was, plainly enough, reflected in the sentence imposed – a $300 fine.
111 In assessing the Minister’s consideration of Mr Mason’s 2012 conviction, the nature and extent of the other information and claims placed before the Minister by Mr Mason also fell for consideration. Besides providing an account of his offending conduct, Mr Mason, through his legal representative, also provided information and made claims about other matters of potential relevance to the Minister’s exercise of discretion. In the 6 November 2017 submission, Mr Mason’s representative set out in some detail what was in substance a chronology of the events that had occurred since Mr Mason had received the Department’s advice that the delegate had decided not to cancel his visa in June 2009, commencing with his release from prison after conviction and sentence for possessing child pornography. This included the information that:
33. On 5 September 2017, a notice was sent to Timothy with intention to consider cancellation of his visa under s 501(2) of the Migration Act 1958.
34. Timothy was obviously shocked and confused. So were his employer … and other workmates.
35. They considered that Tim has been a reformed person and has paid the penalty for the crime he committed. There is no obvious reason for revisiting the crime and repeating the intention to cancel procedure.
112 The same submission addressed the relevance of his 2008 conviction to the decision making task that the Minister, acting personally, was to undertake. It was submitted that:
…Mr Mason was considered for cancellation in 2009, and it was decided not to cancel his visa. He has not offended since that time. We submit that it is unjust in the extreme to revisit that issue in light of no further material offending…
We submit that Timothy has been penalized for his crime that he committed nearly ten years ago. He has proven to have rehabilitated. He no longer poses a threat to the society. On the contrary, he is a major contributor to the success of a leading business in the direct mails industry. All the reference letters demonstrated that he is a model, law-abiding citizen who has spent most of his life in Australia.
113 Also in relation to the risk to the Australian community, the 6 November 2017 submission specifically said:
We submit that all indications of the behaviour of Timothy Mason since his imprisonment have been positive. …
Since his release from jail and re-joining society, he has been a model resident. He has never broken any law. The only breach was an inadvertent act which he volunteered the information to the sex offender registry. He did not try to hide the fact. The resultant fine of $300 reflected how the Registry official considered it to be a minor breach. Other than that incident, he has not deliberately or otherwise commit[ted] any crime. He would not be a risk to any member of the community. In fact, he was commended by the Salvation Army for voluntary work. …
114 While it was for the Minister to make findings touching the matters raised in these submissions and other matters, the Minister was required to consider the significance of the 2012 conviction in the exercise of his discretion, which meant giving the 2012 conviction “proper, genuine and realistic” consideration. This meant that the Minister had to actively engage with the issues to which it gave rise, including what Mr Mason should have done but failed to do with respect to his reporting obligations, whether Mr Mason’s account about his offending should be accepted in whole or in part, the relevance of the 2008 conviction given the passage of time and the prior decision not to cancel his visa on account of that conviction, what Mr Mason had done since his 2012 conviction and, importantly, to what extent the new fact of this conviction bore on the exercise of the Minister’s discretion, bearing in mind the earlier decision not to cancel his visa having regard to his original conviction in 2009.
115 Significantly in this case the Minister could not proceed to make a decision under s 501(2) as if there was no prior administrative history that bore on his exercise of discretion. To do so would be to ignore Mr Mason’s submissions concerning the effect of that process on him and, critically, to make a decision without regard to the legal context in which it was being made. In this case, the Minister’s reasons focussed almost entirely on Mr Mason’s 2008 conviction. The analysis of the significance of this conviction proceeds almost as if the delegate had not made the decision under s 501(2) in 2009 not to cancel Mr Mason’s visa. This is so, in my view, notwithstanding that the Minister adverted, in his reasons at [45]-[46], to the fact that a delegate had previously considered whether Mr Mason’s visa should be cancelled under s 501(2); that Mr Mason had been notified in June 2009 of the delegate’s decision not to cancel his visa; and, impliedly, that the 2012 conviction constituted the fresh information that attracted the Minister’s reconsideration of the exercise of power in s 501(2).
116 It was not enough, in the circumstances of this case, for the Minister merely to advert to the delegate’s previous decision. Absent the 2012 conviction, the Minister’s power to set aside the delegate’s decision was governed by s 501A(2) or (3). Mr Mason’s submissions raised the evident issue of whether the significance of the 2008 conviction had waned with the passage of time, including because almost ten years had passed since the delegate had decided that Mr Mason’s visa should not be cancelled on account of it. Related to this, there was a further issue concerning the significance of the 2012 conviction, given the nature of the offending and the fact that by the time of the Minister’s decision making (which depended on the fact of that conviction) six years had passed since that event. This was also in substance raised in Mr Mason’s submissions.
117 In the circumstances of this case, had the Minister given proper, genuine and realistic consideration to this administrative history, the Minister might reasonably have been expected to acknowledge in some way the basal importance of finality in administrative decision making and the potential inhumanity of subjecting people to continuing uncertainty about their visa status. The Minister did not, however, advert to the potential for practical injustice – referred to in Mr Mason’s submission – where a fresh decision is made focussing on essentially the same wrongdoing as the decision lawfully made many years before, but bringing to an end the permission that had been given to him to remain in Australia notwithstanding the wrongdoing. The Minister did not, moreover, advert to the possibility that this injustice would be exacerbated (as Mr Mason’s submission indicated) if the Minister were to enter upon the new decision making because of a conviction attracting a modest fine six years previously without considering whether that conviction had any significant bearing on the exercise of the discretionary power in question.
118 In all the circumstances of this case, the Minister’s decision was unreasonable in the relevant sense in that the Minister made a finding of some materiality without probative evidence and did not consider matters that under the applicable statutory regime he was bound to consider. For this reason, the decision lacked evident and intelligible justification: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229 and Li at [72].
119 French CJ explained in Li at [27]:
In Wednesbury Corporation, Lord Greene MR observed that the word “unreasonable” in administrative law was used to encompass failure by a decision-maker to obey rules requiring proper application of the law, consideration of mandatory matters and exclusion from consideration of irrelevant matters: “If he does not obey the rules, he may truly be said, and often is said, to be acting ‘unreasonably’”…
Similarly, as Hayne, Kiefel and Bell JJ said in Li at [76], “[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”: see also Li at [69].
120 For these reasons, the decision of the Minister to cancel the applicant’s visa under s 501(2) of the Migration Act should be set aside for jurisdictional error.
121 Having reached this conclusion, it is unnecessary to discuss the applicant’s second ground. If it were necessary to do so, I should reject this ground, largely for the reasons advanced by the Minister: see also FPU18 v Minister for Immigration and Border Protection [2018] FCA 1606 at [49] (Moshinsky J).
disposition
122 For the reasons stated, I would order that a writ of certiorari be issued quashing the decision of the Minister dated 13 February 2018, and Mr Mason be released from immigration detention forthwith. By his amended originating application, Mr Mason also sought an order for mandamus. As I cannot see any utility in making such an order, I have not done so. I have not, however, heard any submissions as to the appropriate relief and, for this reason, I shall reserve liberty to Mr Mason to apply within 14 days if he wishes to seek any further relief.
I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kenny. |
Associate:
