Federal Court of Australia

Gater v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 104

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for judicial review is dismissed.

2.    The applicant pay the respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The applicant sought an extension of time in which to file an application for judicial review of a decision made personally by the Minister for Home Affairs on 14 November 2019 to cancel his visa pursuant to s 501(2) of the Migration Act 1958 (Cth). I heard the applicant’s application for an extension of time together with his substantive application for judicial review at a hearing held on 17 December 2020. At the commencement of the hearing, counsel for the Minister confirmed that the Minister did not oppose the applicant’s application for an extension of time, and I made an order under s 477A(2) of the Act granting that extension of time. I also made an order that the applicant’s draft application filed on 4 February 2020 stand as his application for judicial review. At the conclusion of the hearing, I reserved my decision on the substantive application. For the following reasons, I have determined to dismiss the applicant’s application, with costs.

Background

2    The relevant background for the purpose of this proceeding may be summarised as follows.

3    The applicant is a 63 year old male citizen of the United Kingdom. Prior to the Minister’s decision to cancel his visa, the applicant held a permanent visa to reside in Australia.

4    The applicant first arrived in Australia on 10 September 1959, when he was two years old. Since then, he has resided in Australia, interrupted only by a brief period residing in New Zealand. The applicant suffers from significant mental and physical health issues, including chronic schizophrenia and a serious heart condition.

5    The applicant experienced an extremely difficult upbringing. The material that was before the Minister when he made the decision under review outlines the following circumstances. The applicant was one of six children to parents who were alcoholics. When the applicant was about seven years old, his father died when, extremely drunk, he fell out of a train crossing the Sydney Harbour Bridge. At that time, the applicant was living in a boys’ home where he stayed for three years, at which he was subjected to continual emotional, physical, and sexual abuse. After he returned to his family home, one of his older brothers began sexually abusing him. He attempted suicide and he was placed in another boys’ home for a further two years. On his return to his family home, he did not get along with his new step-father, who was also an alcoholic. He left home and became itinerant, and experienced further abuse before committing his first offences and being sentenced to juvenile training centres, when he was approximately 15 years old. After two and a half years in juvenile training centres, the applicant’s mother took him to New Zealand. Three months later, his mother abandoned him, and he turned to a life centred around alcohol and drugs. He remained in New Zealand for approximately three years, where his alcohol and drug use became entrenched, before returning to Australia where he became homeless, and made several suicide attempts.

6    During the period described above, in the 1970s and the 1980s in Australia and in New Zealand, the applicant was convicted of numerous relatively minor offences, including for stealing, maliciously killing cattle, being idle and disorderly, and the use of obscene language. Later, on 25 February 1994, the applicant was convicted in the Supreme Court of Western Australia on four counts of aggravated sexual penetration without consent, to which he had pleaded guilty. The four counts arose out of a single course of conduct, spanning approximately 40 minutes, during which time the applicant sexually assaulted a stranger while pretending to be armed with a gun. The applicant was sentenced to a total of seven years’ imprisonment. He had already served 21 weeks at the time of sentencing, so his effective sentence was six years and 31 weeks’ imprisonment. The sentencing judge described the applicant’s offences as “extremely serious”, and stated that the applicant’s actions had a very bad effect on the victim, her marriage and her family. The sentencing judge accepted that the applicant’s experience as a victim of institutional child sexual abuse, and his abuse of alcohol, were causal factors linked to his offending conduct, and that he was extremely affected by alcohol at the time of his offending. The sentencing judge also noted that the applicant appeared to be genuinely remorseful for his offending.

7    Before the end of his sentence, the applicant was released from prison on parole. In 1998, one month before his parole was due to expire, the applicant moved from Western Australia to Queensland without notifying, or obtaining the permission of, his parole officer. As a result, in November 2013, the applicant’s parole was cancelled and he was returned to prison to serve the balance of his sentence, being a further 924 days. In May 2014, the applicant was granted conditional release on parole. Reports of the Department of Corrective Services indicate that the applicant met all of the requirements of that second parole period, including by passing all of his drug and alcohol tests.

8    By a letter dated 15 June 2019, the Department of Immigration and Border Protection notified the applicant of its intention to have a decision-maker consider cancelling his visa pursuant to s 501(2) of the Act. The Department’s letter advised the applicant of the grounds on which a decision to cancel his visa may be based, and of the information that might be taken into account in considering whether to cancel his visa, and invited the applicant to respond. The Department’s letter also referred to an earlier letter dated 7 July 2014, by which the Department had previously notified the applicant that consideration was being given to whether to cancel his visa, and to the applicant’s response to that earlier notice, to which the Department stated the decision-maker would have regard in considering whether to cancel his visa. On 26 June 2019, the applicant provided a response to the Department’s renewed notice of its intention to consider cancelling his visa. The Department and the applicant then engaged in further correspondence, by which the Department invited the applicant to comment on further information that it had received which it stated may be taken into account in considering whether to cancel his visa, and the applicant provided further responses to the Department. It is not necessary to provide a detailed account of that correspondence. The key features of the applicant’s submissions to the Department in support of his visa not being cancelled were that he had been a resident of Australia for nearly his entire life and he relied on family support in Australia, whereas he had no connections to the United Kingdom, that he was remorseful for his offending conduct, and that he did not pose any risk to the Australian community, noting that he had not committed any offence in 25 years, that he no longer had any issues with drug and alcohol use, and that he was a converted Christian who volunteered at his local church. The applicant’s wife and some of his step-children also submitted letters of support to the Department.

9    On 14 November 2019, the Minister personally decided to cancel the applicant’s visa pursuant to s 501(2) of the Act. I will summarise the Minister’s reasons for cancelling the applicant’s visa, below. By a letter dated 19 November 2019, the Department notified the applicant of the Minister’s decision to cancel his visa, and attached a copy of the Minister’s decision record and statement of reasons.

The relevant legislation

10    Before turning to the Minister’s reasons for cancelling the applicant’s visa, I shall record the terms of the relevant sections of the Act on which the Minister relied.

11    Section 501(2) of the Act provides the Minister with a discretion to cancel a person’s visa in certain circumstances –

(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.

12    The meaning of the “character test” is given in s 501(6) of the Act, which relevantly includes at paragraph (a) that a person “does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)”. In turn, the definition of a “substantial criminal record” in subsection (7) includes at paragraph (c) that the “person has been sentenced to a term of imprisonment of 12 months or more”.

The Minister’s decision

13    The Minister’s reasons for cancelling the applicant’s visa are recorded in a written statement of reasons, which was signed by the Minister. Those reasons may be summarised as follows.

14    The Minister commenced by stating that he reasonably suspected that the applicant did not pass the character test, and that the applicant had not satisfied him that he passed the character test. The Minister stated that the relevant ground of the character test was s 501(6)(a) of the Act, to which I referred above. The Minister referred to the applicant’s sentence on four counts of aggravated sexual penetration without consent, which he stated satisfied that ground.

15    The Minister then turned to consider whether to exercise his discretion under s 501(2) of the Act to cancel the applicant’s visa. The Minister stated that he had considered whether to exercise the discretion, taking into account factors that he considered weighed for and against cancelling the visa, and that he was mindful that Australia has a sovereign right to determine whether non-citizens who are of character concern should be allowed to remain in Australia. The Minister’s reasons then addressed that consideration under the following headings, which aligned with several of the primary and other considerations referred to in Part A of Section 2 of Direction No 79 dated 20 December 2018 and made under s 499 of the Act, noting that the Minister was not bound by the Direction.

16    Under the heading “Protecting the Australian Community”, the Minister stated that he had considered the Commonwealth Government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens.

17    Under the heading “Criminal Conduct”, the Minister considered the applicant’s criminal conduct. The Minister stated that he did not consider the applicant’s early offending to be relevant. The Minister’s consideration was limited to the applicant’s conviction on four counts of aggravated sexual penetration without consent. The Minister expressed his view that sexual offences are generally viewed very seriously, and that the applicant’s conviction was very serious, as demonstrated by the sentence imposed for his offending. The Minister also accepted the sentencing judge’s account that the applicant’s conduct had a very bad effect on the victim.

18    Under the heading “Risk to the Australian Community”, the Minister considered whether the applicant posed a risk to the Australian community through reoffending by having regard to any causal or mitigating factors in his offending, and giving consideration to the steps that he had undertaken to address and reform his behaviour. In relation to causal or mitigating factors, the Minister agreed with the sentencing judge’s acceptance that the applicant’s experience as a victim of institutional child sexual abuse, and his abuse of alcohol, were causal factors linked to his offending conduct. The Minister also accepted the assessment and opinion of a forensic psychologist, who had assessed the applicant before sentencing, and who found that his offending behaviour was identifiable as a post-traumatic stress disorder reaction, and that he was “not functioning from a coherent position of premeditation and control” at the time of his offending. In relation to the applicant’s remorse, responsibility, and rehabilitation, the Minister accepted the sentencing judge’s view that the applicant displayed genuine remorse and regret for his offending conduct, and accepted that the applicant remained sincerely remorseful. The Minister also accepted that the applicant was fully engaged with his mental health treatment team and that his mental instability would not lead him to reoffend, that he had an “exceptionally high level of support from his family”, that his experience of institutional child sexual abuse was no longer a risk factor, and that his use of alcohol and drugs was no longer a risk factor. The Minister also referred to the fact that the applicant had not reoffended for more than 25 years. The Minister concluded at [57] of his statement of reasons –

57.    I find there is a very low risk [the applicant] will reoffend. If [the applicant] did engage in further criminal conduct of a similar nature, it could result in conduct that could cause psychological and/or physical harm to a member of the Australian community.

19    Under the heading “Best interests of minor children”, the Minister considered the consequences of cancelling the applicant’s visa on minor children who were connected to the applicant’s life. The Minister stated that he treated the best interests of minor children as a primary consideration, and found that it was in the best interests of the applicant’s step-grandson, his minor nieces and nephews, and his estranged biological grandchildren for his visa not to be cancelled.

20    Under the heading “Expectations of the Australian community”, the Minister stated –

67.    I have noted [the applicant’s] submissions that his family, as members of the Australian community, would be hurt if he was removed from Australia.

68.    I find that the Australian community would expect non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa of such a person. [The applicant] has breached this trust as he has been convicted of four counts of aggravated sexual penetration without consent in Australia.

69.    Despite the fact that the Australian community expects non-citizens to obey the law, I am of the view that they would also take into account the fact that [the applicant] was a victim of institutionalised child sexual abuse in Australia. The Royal Commission into Institutional Responses to Child Sex Abuse received strong support from the Australian community and this evidences community opinion in these matters. The extent of emotional, physical and sexual abuse perpetrated on [the applicant] in institutions from a very young age led to extreme trauma and his Honour [the sentencing judge] accepted this played a role in [the applicant’s] sexual assault offences.

70.    I am therefore of the view that while taking into account the serious nature of [the applicant’s] offences, the Australian community would afford him significant leniency in expecting whether he should hold a visa or not.

21    Under the heading “Ties to Australia”, the Minister stated that he had regard to the strength, nature and duration of the applicant’s ties to Australia. The Minister stated that as the applicant had lived in Australia for almost his entire life, the Australian community may afford a higher tolerance of his criminal conduct. The Minister also stated that he gave more weight to that consideration because the applicant had spent approximately 17 years contributing positively to the community by working, and volunteering with his local church. The Minister also described the applicant’s family circumstances in detail. The Minister stated that he was satisfied that the applicant’s relationship with his immediate family was very close and supportive. The Minister accepted that the applicant was a central figure in his family to both his wife and children, and that he had played an instrumental role in their family unit. The Minister also accepted that if the applicant was removed from Australia, that would cause significant emotional destruction to an entire family unit whose sense of family irrevocably included the applicant, and that the applicant’s immediate family would experience significant emotional distress and an irreversible impact on their close family bond.

22    Under the heading “Extent of impediments if removed”, the Minister considered the impediments that the applicant would face if removed from Australia to the United Kingdom in terms of establishing and maintaining basic living standards in the context of what is generally available to other citizens of the United Kingdom. The Minister referred to the applicant’s significant mental and physical health issues, and to the medical and family support that he receives to manage those issues. The Minister stated that while he considered that the applicant, if removed, would have access to health services and social welfare financial support commensurate with other British citizens in similar circumstances, that constituted a narrow view of the applicant’s health needs. The Minister stated that he had particular regard to the highly supportive and protective environment that the applicant’s family provide for him in Australia, and the Minister expressed his view that the significance of the applicant’s family support to his mental and physical wellbeing could not be underestimated. The Minister concurred with the applicant’s family’s fears that if the applicant was removed to the United Kingdom, he would very likely experience a significant deterioration in his physical and mental health.

23    Under the heading “Conclusion”, the Minister stated –

102.    I reasonably suspect that [the applicant] does not pass the character test and he has not satisfied me that he passes the character test.

103.    In considering whether or not to cancel [the applicant’s] visa I gave primary consideration to the best interests of [the applicant’s] grandchild, Raziel, nieces and nephews, Anthony, Anthea and Rhea, and five biological grandchildren. I found their best interests would be served by not cancelling the visa.

104.    [The applicant] has committed a very serious crime, that of aggravated sexual penetration without consent which is of a sexual nature. Non-citizens who commit such offence should not generally expect to be permitted to remain in Australia.

105.    I find that the Australian community could be exposed to harm should [the applicant] re-offend in a similar fashion. I could not rule out the possibility of further offending by [the applicant]. The Australian community should not tolerate any further risk of harm.

106.    I found the above consideration outweighed the countervailing consideration in [the applicant’s] case, including the best interests of the child treated as a primary consideration, impact on family members, and impediments to return. I have also considered the length of time [the applicant] has made a positive contribution to the Australian community and the consequences of my decision [on] other family members.

107.    I am cognisant that where great harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel the visa. This is the case even applying a higher tolerance of criminal conduct by [the applicant] than I otherwise would because he has lived in Australia almost his entire life.

108.    In reaching my decision I concluded that [the applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.

109.    Having given full consideration to all of these matters I decided to exercise my discretion to cancel [the applicant’s] Class BF Transitional (Permanent) visa under s 501(2) of the Act.

Application for judicial review and the parties’ submissions

24    The applicant’s application for judicial review of the Minister’s cancellation decision raises a single ground of review –

The decision of the Minister is affected by jurisdictional error because the Minister made incompatible findings, at para 70 and the last sentence of para 105 of his reasons – it is not logically or rationally possible to find that the community would extend leniency to the applicant yet at the same time find that the community should not tolerate any further risk.

(Emphasis in original)

25    The paragraphs of the Minister’s reasons referred to in the applicant’s sole ground of review are set out at [20] and [23], above. By his written submissions, the applicant also impugned paragraph [57] of the Minister’s reasons, which is set out at [18] above.

26    Counsel for the applicant submitted that there was striking incompatibility in the following three statements in the Minister’s reasons –

(1)    First, that the Minister at [57] of his reasons found that the applicant posed a “very low risk” of further offending. The applicant emphasised that the Minister reached that finding after considering in detail the circumstances of the applicant’s offending and the changes in the applicant’s life over the ensuing 25 years, during which time he had not reoffended.

(2)    Second, that the Minister at [70] of his reasons found that “the Australian community would afford [the applicant] significant leniency” (emphasis added). The applicant submitted that this was significant as the Minister found that while the Australian community would generally expect a non-citizen who had committed a serious offence to have his or her visa cancelled, the Australian community would not apply that general expectation to the applicant in light of the fact that he had experienced institutionalised child sexual abuse in Australia. The applicant submitted that the Minister’s finding in relation to the expectations of the Australian community necessarily included within it consideration of the risk of harm that the applicant posed to the community. That is, the applicant submitted that notional community expectations as to whether the applicant should hold a visa, as found by the Minister, were necessarily informed by an assessment of the risk of harm that the applicant posed to the community. Therefore, the applicant submitted that the finding at [70] of the Minister’s reasons that the community would afford him “significant leniency” must include leniency in relation to the risk of harm that he posed to the community. Overall, the applicant submitted the Minister had found that the factor of the expectations of the Australian community pointed against cancelling his visa.

(3)    Third, that nonetheless the Minister stated at [105] of his reasons that the “Australian community should not tolerate any further risk of harm” (emphasis added). The applicant submitted that this statement could not be reconciled with the Minister’s earlier finding at [70] that the Australian community would afford him “significant leniency”. The applicant submitted that once the Minister found that the Australian community would afford him significant leniency, which necessarily included some tolerance for him posing a risk of harm, there was then no intelligible justification for the Minister to find that the same Australian community should not tolerate any risk of harm. The applicant submitted that there was an intellectual gap in the Minister’s reasoning because the Minister did not explain why he determined the community should not tolerate any risk, in circumstances where the Minister had earlier found that the community was prepared to tolerate some risk. The applicant submitted that the inconsistency required explanation, which the Minister had not provided. Further, the applicant submitted that the effect of that intellectual gap was that the Minister did not bring his earlier finding that the Australian community would afford the applicant significant leniency into account in reaching his conclusion to cancel the applicant’s visa.

27    Counsel for the applicant submitted that those incompatible statements revealed that some legal error must have affected the Minister’s decision, even though that error could not be identified with precision. Counsel submitted that the error may be understood as a species of legal unreasonableness to be inferred from the existence of contradictory, yet important statements in the same set of reasons. More broadly, counsel submitted that the Minister must have misunderstood some aspect of the discretion that he sought to exercise in a material way giving rise to jurisdictional error.

28    Counsel for the Minister submitted that there was no inconsistency between the findings made in the Minister’s statement of reasons at [57], [70] and [105], and that the decision was not affected by jurisdictional error. Counsel submitted that, in short, [57] and [105] of the reasons were addressed to the protection of the Australian community, whereas paragraph [70] was addressed to the expectations of the Australian community. Counsel submitted that the applicant’s submissions proceeded on the mistaken basis that [105] of the reasons was also directed to the expectations of the Australian community. Addressing those paragraphs in turn, counsel for the Minister submitted that –

(1)    At [57] of the reasons, in assessing the protection of the Australian community, the Minister found that the applicant posed a very low risk of reoffending, but noted that any reoffending conduct of a similar nature to the applicant’s past criminal conduct could cause psychological and/or physical harm to a member of the Australian community.

(2)    At [70] of the reasons, in addressing the expectations of the Australian community, the Minister found that the general expectation of the Australian community that a non-citizen who had committed a serious offence would have his or her visa cancelled would be moderated in light of the applicant’s experience of institutional child sex abuse in Australia. Therefore, the Minister submitted that this factor was neutral to the overall assessment whether to exercise his discretion to cancel the applicant’s visa. The Minister disputed the applicant’s characterisation of this factor as weighing against cancelling the applicant’s visa.

(3)    At [105] of the reasons, again in addressing the protection of the Australian community, the Minister found that the Australian community should not tolerate any further risk of harm by the applicant. The Minister submitted that the reasons then proceeded in [106]-[108] to conclude that the risk of harm to the Australian community outweighed the countervailing considerations against cancelling the applicant’s visa.

29    Counsel for the Minister submitted that it could not be said that the Minister had reasoned in a way that was illogical, irrational or unreasonable. At the hearing of this application, counsel submitted that to establish jurisdictional error on the basis of illogical reasoning or irrational findings on the way to a final conclusion requires that it be shown that the path of reasoning was one that no reasonable decision-maker could have adopted, citing CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [59] (McKerracher, Griffiths and Rangiah JJ) and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [132] (Crennan and Bell JJ). Counsel emphasised the importance of that high standard for establishing jurisdictional error in a process of reasoning, for otherwise the task that the court is being invited to undertake on judicial review would come very close to reviewing the merits of the decision.

30    Counsel for the Minister submitted that it may be that not every decision-maker would have reached the conclusion that the Minister did on the facts, but that it was a matter for the Minister to determine what weight to give to the different considerations that he took into account in exercising his discretion, and that he had an evident and intelligible justification for reaching the conclusion to cancel the applicant’s visa. Counsel submitted that it was open to the Minister to conclude that while the applicant posed a very low risk of reoffending, the Australian community should not tolerate any risk of harm by the applicant, and therefore to decide to exercise his discretion to cancel the applicant’s visa. Finally, counsel for the Minister submitted that it could not be said, and noted that the applicant did not say, that no reasonable decision-maker could have reached the conclusion that he did.

Consideration

31    This case turns on the proper understanding of the Minister’s reasons for deciding to cancel the applicant’s visa. Counsel for the applicant submitted that the Minister’s reasons reveal striking incompatibility, whereas counsel for the Minister submitted that there was no inconsistency in the reasons. Consequent upon their competing submissions, counsel for the applicant submitted that the Minister’s decision must have been affected by some material legal error, and suggested that the error may be a form of legal unreasonableness, whereas counsel for the Minister submitted that there was no legal error and that the decision to cancel the applicant’s visa had an evident and intelligible justification, and was open to the Minister.

32    It is well settled and often repeated that the reasons of an administrative decision-maker, such as the Minister in this case, are to be read as a whole and not over-zealously dissected 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 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). Passages within a statement of reasons must be understood in their context, and allegations of inconsistencies within a statement of reasons must be assessed in light of the reasons as a whole.

33    I have set out a summary of the Minister’s reasons at [14]-[23], above. That summary outlines the structure of the Minister’s reasoning, which involved three steps. First, the Minister found that his discretion to cancel the applicant’s visa under s 501(2) of the Act was enlivened because he reasonably suspected that the applicant did not pass the character test, and the applicant did not satisfy him that he passed the character test. It is uncontroversial that the applicant did not pass the character test, by reason of his substantial criminal record from his conviction on four counts of aggravated sexual penetration without consent. Second, the Minister considered whether various factors were for or against cancelling the applicant’s visa. The Minister considered those factors under the individual headings to which I referred, which were “Protecting the Australian Community”, “Criminal Conduct”, “Risk to the Australian Community”, “Best interests of minor children”, “Expectations of the Australian community”, “Ties to Australia”, and “Extent of impediments if removed”. Relevantly, the Minister treated the “Risk to the Australian Community” and the “Expectations of the Australian community” as separate factors, which he addressed separately. Third, under the heading “Conclusion”, the Minister undertook a balancing exercise, in which he considered the weight to be attributed to those factors. The Minister concluded that the risk of harm that the applicant posed to the community outweighed the countervailing considerations, and decided to cancel the applicant’s visa.

34    The sole ground of review in this proceeding is focussed on two factors considered at the second step of the Minister’s reasoning – the “Risk to the Australian Community” and the “Expectations of the Australian Community” – and how the Minister brought those factors to bear in the third, evaluative step of his reasoning in assessing whether to exercise his discretion to cancel the applicant’s visa. The applicant’s case requires that a close examination of those parts of the Minister’s reasons be undertaken, although as I have mentioned, that examination must not extend to over-zealous dissection without regard to the context of the reasons as a whole.

35    Viewed in context, the relevant parts of the Minister’s reasons are to be understood as follows –

(1)    In assessing the risk to the Australian community at [22]-[57] of his reasons, the Minister engaged in a detailed assessment of the risk posed by the applicant. I have summarised the Minister’s reasoning on this factor at [18], above. The Minister concluded at [57] of his reasons that there was a “very low risk” that the applicant would reoffend. The finding that there was a “very low risk” necessarily included a finding that there was at least some risk, because the Minister also found that if the applicant did engage in further criminal conduct of a similar nature to his past offending, then that “could cause psychological and/or physical harm to a member of the Australian community.” That is, the Minister found that while there was a very low risk that the applicant would reoffend, the Minister found that if he did, there could potentially be severe consequences.

(2)    In assessing the expectations of the Australian community at [67]-[70] of the reasons, the Minister began by referring to the expectations of the Australian community towards non-citizens generally, and then turned to assessing the expectations of the Australian community towards the applicant in particular, given his personal experiences living in Australia. As observed by counsel for the applicant at the hearing of this application, the factor of the expectations of the Australian community is necessarily a metaphorical reference point because the community’s notional, singular expectations are to be found and considered by the Minister himself. The Minister found that the Australian community generally expects non-citizens to obey Australian laws while in Australia, and that where a non-citizen has breached that trust, or there is an unacceptable risk that a non-citizen will breach that trust, it may be appropriate to cancel that person’s visa. The Minister then considered whether that general expectation would be moderated when applied to the applicant, given his particular experiences living in Australia. The Minister found that it would be. The Minister stated that, in his view, the Australian community would take into account the fact that the applicant was a victim of institutionalised child sexual abuse in Australia, which led to extreme trauma and which the sentencing judge accepted had played a role in his sexual offending. Therefore, as to the expectations of the Australian community, the Minister concluded that the Australian community would take into account the serious nature of the applicant’s offences, but it would also afford him significant leniency in its expectation as to whether or not he should hold a visa.

(3)    In undertaking the third, evaluative step of his decision-making process at [103]-[109] of the reasons, the Minister considered whether to exercise his discretion to cancel the applicant’s visa. At [104] of his reasons, the Minister emphasised the very serious nature of the applicant’s offending, and stated that non-citizens who commit such offences should not generally expect to be permitted to remain in Australia. The Minister was there referring to his earlier comments that the Australian community generally expects non-citizens to obey Australian laws, and that where a person breaches that trust, it may be appropriate to cancel that person’s visa. At [105] of his reasons, the Minister then turned to the risk that the applicant posed to the Australian community. The Minister found that the Australian community could be exposed to harm if the applicant reoffended in a similar fashion, and the Minister refused to rule out the possibility that the applicant would reoffend. That reasoning was in keeping with the Minister’s earlier finding at [57] of his reasons that there was a very low, but nonetheless necessarily some risk that the applicant would reoffend, and that if the applicant did engage in conduct of a similar nature to his past criminal conduct, that conduct could cause psychological and/or physical harm to a member of the Australian community. Then, in the final sentence of [105] of the reasons, the Minister stated the “Australian community should not tolerate any further risk of harm.” The Minister was there expressing his view that the Australian community should not tolerate the risk posed by the applicant, and not commenting on the notional expectations of the Australian community as to whether the applicant should hold a visa. Following that, in the opening sentence of [106] of his reasons, the Minister stated “I found the above consideration outweighed the countervailing considerations in the [applicant’s] case”. The Minister’s reference to the singular above consideration was a reference to the risk of harm that the applicant posed to the Australian community, which he had considered in the preceding paragraph. That construction is reinforced by [107] and [108] of the Minister’s reasons, where he further explained his conclusion that the risk of harm posed by the applicant outweighed the countervailing considerations that weighed against cancelling the applicant’s visa. In those paragraphs, the Minister stated that where a person could inflict great harm on the Australian community, even strong countervailing considerations would generally be insufficient for him not to cancel that person’s visa, and expressed his view that the applicant represented an unacceptable risk of harm to the Australian community. Notably, in those paragraphs in which the Minister set out his reasoning on the balancing exercise, the Minister did not rely on the expectations of the Australian community as a factor weighing in favour of cancelling the applicant’s visa. Rather, the Minister relied only on the risk of harm that the applicant posed to the Australian community. That was consistent with what the Minister had found about the notional expectations of that Australian community – in essence, that that factor did not weigh strongly against the applicant, as it ordinarily might have done for a person convicted on four counts of aggravated sexual penetration without consent, because the Australian community would afford the applicant significant leniency in light of his personal experiences in Australia as the victim of institutionalised child sexual abuse.

36    Read as a whole, I consider that the Minister’s statement of reasons demonstrates a cogent reasoning process, which did not bear the inconsistency alleged by the applicant. I do not accept the applicant’s submission that the Minister’s reasons include an intellectual gap because the Minister did not explain why the community should not tolerate any further risk of harm, when the Minister had earlier found that the community was prepared to tolerate some risk. It is not necessary to decide whether, as the applicant claims, the notional expectations of the Australian community as to whether the applicant should hold a visa, as found by the Minister, were necessarily informed by an assessment of the risk of harm that the applicant posed to the community. The fundamental point is that it was open, and not inconsistent, illogical or irrational, for the Minister to find that the Australian community in assessing whether the applicant should hold a visa would afford him significant leniency because of his experience of institutional child sexual abuse, and also to find that nonetheless in his own view the Australian community should not tolerate any further risk of harm posed by the applicant. The Minister was entitled to his view that the community should not tolerate any further risk of harm posed by the applicant, and that view did not require any further explanation. The Minister was not obliged to evaluate the risk of harm posed by the applicant in any particular way, or to ascribe any particular characterisation to the quality of the risk: Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; 230 FCR 367 at [71] (Rangiah J, with North J agreeing) and Brown v Minister for Immigration and Border Protection [2015] FCAFC 141; 235 FCR 88 at [44] (Rares, Flick and Perry JJ).

37    Further, it was open to the Minister to conclude that the risk of harm posed by the applicant outweighed the countervailing considerations against cancelling the applicant’s visa. As was accepted by counsel for the Minister in this proceeding, it may be that not every decision-maker would have reached the conclusion that the Minister did on the facts. But that is not the point. Section 501(2) of the Act confers a discretion on the Minister, in certain circumstances, to decide whether to cancel a visa that has been granted to a person. It was a matter for the Minister to determine what weight to give to the different factors that he took into account in exercising his discretion, and the Minister by his reasons expressed an evident and intelligible justification for deciding to cancel the applicant’s visa. The Minister’s reasoning was not illogical, irrational or unreasonable: cf, Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [131] (Crennan and Bell JJ). The Minister’s reasoning, and his conclusion, were within the bounds of his power as conferred by the Act. The merits of administration action, to the extent that they can be distinguished from legality, are for the repository of the relevant power: Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 36 (Brennan J).

38    Finally, at the hearing of this application, I directed counsel for the parties to the observations of Allsop CJ in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 at [3]. In that paragraph, the Chief Justice emphasised the human consequences that removal from Australia can bring about, and stated that decision-makers deciding to remove a person from Australia must honestly confront those consequences, and that removal decisions are not a place for decisional checklists or formulaic expression which may hide a lack of the necessary reflection upon those consequences. Counsel for the applicant submitted that those comments reinforced the applicant’s submission that the inconsistency in the Minister’s reasons for cancelling his visa, a decision with grave consequences, gave rise to jurisdictional error. Counsel for the Minister submitted that the Minister’s reasons demonstrated that, in deciding whether to cancel the applicant’s visa, the Minister did grapple with the real consequences of making that decision. Counsel for the Minister highlighted those parts of the Minister’s reasons where the Minister found that the applicant was a central figure in his family to both his wife and children (at [76]), that the applicant’s removal from Australia would cause significant emotional destruction to an entire family unit whose sense of family irrevocably included the applicant (at [82]), that the applicant’s immediate family would experience significant emotional distress and an irreversible impact on their close family bond (at [85]), and that the applicant would very likely experience a significant deterioration in his physical and mental health (at [101]). I accept that the Minister squarely confronted the reality of the consequences of his decision to cancel the applicant’s visa, which I have found was a decision made in accordance with law.

Conclusion

39    For the above reasons, I have determined to dismiss the applicant’s application for judicial review.

Associate:

Dated:    16 February 2021