Federal Court of Australia

Hunt v Minister for Home Affairs [2021] FCA 507

ORDERS

THE COURT ORDERS THAT:

1.    An order in the nature of certiorari issue quashing the Respondent’s decision dated 22 July 2020 to cancel the Applicant’s visa under s 501(2) of the Migration Act 1958 (Cth).

2.    An order of mandamus issue to the Respondent requiring the Respondent to consider the cancellation of the Applicant’s visa under s 501(2) of the Migration Act 1958 (Cth) in accordance with law.

3.    The Respondent pay the Applicant’s costs of this application, to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an amended originating application for judicial review of a migration decision. The applicant, Mr Hunt, seeks review of a decision of the respondent, the Minister for Home Affairs (Minister), made on 22 July 2020 under s 501(2) of the Migration Act 1958 (Cth) (Migration Act), to cancel the applicant’s Class TY (subclass 444) visa.

2    Section 501(2) of the Migration Act relevantly provides:

(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.

Decision of Minister—natural justice does not apply

3    The Minister submits that the application before the Court be dismissed with costs.

Background

4    Mr Hunt is a citizen of New Zealand, and was born on 14 September 1989. He permanently relocated to Australia with his family on 20 April 1996 and has resided in Australia as the holder of a subclass 444 visa since that time. Relevantly, between 2007 and 2012, Mr Hunt committed a number of offences.

5    On 4 September 2007, Mr Hunt committed his first offence, robbery. Mr Hunt was on a train line platform when he took a mobile phone from a vulnerable person.

6    On 11 October 2007, Mr Hunt committed his second offence, assault occasioning bodily harm. The victim and his friend had left a fast food restaurant when they passed a group of teenagers, which included Mr Hunt. Mr Hunt went up to the victim and struck him twice, perceiving the victim to be spreading stories about him. Once the victim was on the ground, Mr Hunt struck him another six times. The attack was unprovoked.

7    On 15 November 2007, Mr Hunt committed his third offence, contravene direction or requirement. Mr Hunt was required to report to the Redcliffe Police Station in relation to the assault, however he failed to do so.

8    On 16 December 2007, Mr Hunt committed his fourth offence, public nuisance. Mr Hunt was being loud and abusive to police at around 2.30 am in the morning near a hotel. The police tried to speak with Mr Hunt, and Mr Hunt yelled out at them.

9    On 24 January 2008, Mr Hunt committed his fifth and sixth offences, contravene direction or requirement and obstructing a police officer. Mr Hunt was at a shopping centre with a large group of people who were being loud, offensive and using coarse language. Mr Hunt was asked by police to leave the shopping centre and not return, however he was still there one hour later. The police approached Mr Hunt and attempted to arrest him for not complying, but Mr Hunt resisted and had to be forcibly placed in the back of a police vehicle.

10    On 4 April 2008, Mr Hunt committed his eighth offence, manslaughter. A fight erupted at a park between two groups unknown to each other. One group comprised Mr Hunt and two other men, the other comprised the deceased, the deceased’s son, and their friend. Mr Hunt punched the deceased and kicked him whilst he was on the ground. With the help of another assailant, Mr Hunt threw the deceased into water. The deceased died as a result of the injuries sustained in the fight.

11    Mr Hunt was held on remand from 4 April 2008 until 23 November 2010. On 14 March 2010, while being held in remand, Mr Hunt was charged with possessing dangerous drugs. He pleaded guilty to this offence and was sentenced on 15 July 2010 to one month’s imprisonment. On 23 November 2010, Mr Hunt was convicted of a number of offences, including that of manslaughter. He was sentenced to 8 years’ imprisonment for his conviction of manslaughter, and a further 12 months’ imprisonment, to be served concurrently, for his convictions of robbery and assault occasioning bodily harm.

12    Mr Hunt was released on parole on 3 May 2011.

13    On 19 November 2012, Mr Hunt committed the offences of:

    commit public nuisance;

    contravene direction or requirement; and

    assault or obstruct police officer.

For these offences, Mr Hunt was sentenced to pay a fine of $400.00.

14    On 29 November 2014, Mr Hunt married his long-time girlfriend, an Australian citizen. Since that time, he and his wife have had three children, all of whom are Australian citizens.

15    By written notice dated 22 June 2019, the Minister notified Mr Hunt of his intention to consider cancelling his visa under s 501(2) of the Migration Act (Notice). On 12 September 2019, Mr Hunt, through his then solicitor, provided a substantive response to the Notice. On 22 July 2020, the Minister decided to exercise his discretion under s 501(2) of the Migration Act to cancel the visa and provided a written statement of reasons for his decision. As a result, Mr Hunt was taken into immigration detention on 1 August 2020, where he remains.

decision of the minister

16    In his statement of reasons, the Minister began by noting that Mr Hunt was convicted in the Supreme Court of Queensland on 23 November 2010 of manslaughter and sentenced to eight years imprisonment. Mr Hunt conceded that he did not pass the character test on that basis. The Minister observed that, as a result of that sentence of imprisonment:

    Mr Hunt had a substantial criminal record; and

    the Minister reasonably suspected that:

•    Mr Hunt did not pass the character test by virtue of s 501(6)(a) of the Migration Act with reference to s 501(7)(c) of the Migration Act; and

•    Mr Hunt had not satisfied the Minister that Mr Hunt passed the character test.

17    Having found that Mr Hunt did not pass the character test, and having assessed the information set out in the submissions and attachments, the Minister considered whether to exercise his discretion to cancel Mr Hunt’s visa, taking into account factors that he considered weighed against and in favour of cancelling the visa. The Minister noted that Australia has a sovereign right to determine whether non-citizens who are of character concern should be allowed to remain in Australia.

18    The Minister then turned to factors falling under the following headings:

    protecting the Australian Community;

    criminal conduct;

    risk to the Australian community;

    best interests of minor children;

    expectations of the Australian community;

    other considerations, namely ties to Australia and the extent of impediments if removed.

19    In respect of these matters the Minister found, in summary, as follows.

20    Mr Hunt contended that the primary consideration of the protection of the Australian community did not weigh in favour of cancellation of his visa. This was as a result of taking into account Mr Hunt’s conduct to date and his risk of reoffending.

21    In considering Mr Hunt’s criminal conduct, the Minister found that Mr Hunt had a history of offending, which had involved violence that increased in seriousness over time. Further, the Minister formed the view that Mr Hunt’s violent offences were very serious. The Minister referred to the sentencing remarks, and noted further that Mr Hunt’s offending as described at [12] occurred over a seven month period.

22    The Minister discussed the offence of manslaughter which occurred on 4 April 2008. The Minister stated:

19.    … Mr HUNT was involved in five seconds of pushing and punching with a force of about six out of 10 and then kicking Mr Wort whilst on the ground. Mr Wort suffered injuries to his face and body and died as a result of the injuries sustained in the fight. The Judge stated Mr Wort had some pre-existing vulnerabilities and that death would have occurred quite quickly.

20.    I note the Judge stated the Crown was not able to say which person inflicted the fatal blow, however, stated Mr HUNT admitted going one on one with Mr Wort and punching him with moderate force twice, kicking him around the middle of the body whilst he was down and then, with another person, throwing Mr Wort in the water after he went down. Mr HUNT stated he heard noises and sounds from Mr Wort after he went down and then dragged him out of the water and he was still breathing at the time. The Judge noted Mr HUNT told police he had no intention to kill Mr Wort or to harm him, and when he left he thought Mr Wort was all right.

21.    I note the Judge considered a report form [sic] Dr Olumbe who was of the view that he final pathway to Mr Wort’s death was neck compression due to a combination of airway obstruction and/or the blockage of blood vessels. Dr Olumbe stated only a moderate amount of force would have been required to cause Mr Wort’s death due to his pre-existing medical conditions.

22.    The Judge stated the offending was an attack of three on one to a vulnerable man who was showing no real resistance and that it was violence in a public place at night.

23    The Minister noted that Mr Hunt’s criminal history also showed him to have committed a range of offences, and at [30] found that Mr Hunt had a history of offending which had involved violence and increased in seriousness over time. The Minister found that Mr Hunt’s conviction for manslaughter was very serious.

24    When considering the extent to which Mr Hunt posed a risk to the Australian community of reoffending, the Minister had regard to mitigating and causal factors in Mr Hunt’s offending, and gave consideration to the steps Mr Hunt had undertaken to address his behaviour. Specifically, the Minister took into account:

    Mr Hunt’s overall conduct in the custodial and non-custodial environment.

    Mr Hunt’s insight into the offending.

    Mr Hunt’s youth when he offended, and the fact he was influenced by alcohol and the “wrong crowd”. In particular the Minister noted that Mr Hunt was 18 years old when the manslaughter offence occurred.

    The psychological report from Dr Jacqui Yoxall that noted the offences of manslaughter, robbery, assault and public nuisance all appeared to have occurred in the context of Alcohol Use Disorder.

    Mr Hunt’s steps towards rehabilitation to address his alcohol abuse, noting, however, that Mr Hunt was returned to custody for a period of time due to a breach in his release conditions involving alcohol intoxication.

    Mr Hunt’s genuine remorse for his offending and his acceptance of responsibility.

    Mr Hunt’s marriage to his wife, the birth of his three children and becoming a member of his wife’s church. The Minister noted however that Mr Hunt had had family support when he had previously offended.

    That Mr Hunt had not reoffended since 19 November 2012.

    Letters of support from Mr Hunt’s immediate and extended family and friends attesting to his good character, stating he had changed, was remorseful, had rehabilitated, had not reoffended since his release into the community, had been a positive role model, was an asset to the community and had strong support from his family.

    That Mr Hunt had convictions for breaches of judicial orders and had offended whilst on parole.

    Psychologist Dr Jacqui Yoxall’s assessment of Mr Hunt’s risk of reoffending, noting that this assessment was complex and that the key dynamic risk factors were relapse to alcohol misuse, negative social influence and attitudes that condoned violence.

    Mr Hunt’s substantial maturation in thinking and amelioration of past attitudes towards violence and authority, which was reflected in his scores on the Firestone Assessment of Violent Thoughts. Specifically, the assessment indicated that Mr Hunt did not currently endorse beliefs or attitudes that predisposed an individual to violent behaviour.

    Dr Yoxall’s view that Mr Hunt’s risk of reoffending in terms of violence was now low, but was dependent upon his ongoing abstinence from alcohol, and negative social influences. Changes to these dynamic risk factors or a loss of protective factors could make Mr Hunt more vulnerable to reoffending.

25    The Minister accepted that Mr Hunt’s alcohol abuse and youth contributed to his offending. The Minister observed:

42.    I accept Mr HUNT has made some steps towards rehabilitation to address his alcohol abuse. However, notwithstanding Mr HUNT completing courses whilst in prison and attended Alcoholics Anonymous, I note Dr Yoxall stated upon release from prison in 2011, that Mr HUNT breached his conditions on two occasions, one which involved alcohol intoxication, and was returned to custody on two separate occasions. I find that the risk of Mr HUNT continuing to engage in alcohol abuse increases the risk of his reoffending.

26    The Minister acknowledged Mr Hunt’s remorse, and accepted that his insight into his offending lessened the risk of his reoffending. The Minister continued:

59.    I note Dr Yoxall states the key dynamic risk factors in Mr HUNT’s case are relapse to alcohol misuse, negative social influence and attitudes that condone violence. Dr Yoxall states Mr HUNT has comprehensively addressed and miniminimized each of these dynamic risk factors in the last six years and 10 months, specifically indicating his previous Alcohol Use Disorder is now in sustained remission, he has disassociated with former friends or associates who abuse substances or engage in crime and he is now ensconced in his Church community, along with his wife and wife’s family, wherein he has positive prosocial influence. Dr Yoxall stated Mr HUNT also reported a substantial maturation in thinking and amelioration of past attitudes towards violence and authority which is reflected in his scores on the Firestone Assessment of Violent Thoughts which indicated that he does not currently endorse beliefs or attitudes that predispose an individual to violent behaviour.

60.    I note Dr Yoxall states the protective factors in Mr HUNT’s case include his current family situation and his role as husband and father, his employment and his family prosocial support.

61.    In consideration of these factors, I note Dr Yoxall was of the view that Mr HUNT’s risk of reoffending in terms of violence is now low, but dependent upon his ongoing abstinence from alcohol, and negative social influences. Dr Yoxall states changes to these dynamic risk factors or a loss of protective factors could make Mr HUNT more vulnerable to reoffending both in terms of violence or general offending.

62.    In considering MR HUNT’s risk assessment from Dr Yoxall, I have concerns Mr HUNT’s dynamic riskfactors or protective factors may change in the future, noting the history of relapses to alcohol use and his relatively young age at 30.

63.    Taking the above into account, I find that there is a risk that Mr HUNT will reoffend.

64.    If Mr HUNT 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.

27    The Minister treated the best interests of affected children who were younger than 18 years of age in Australia as a primary consideration. The Minister acknowledged Mr Hunt’s active involvement with his three children, including his provision of financial, emotional and domestic support to them. The Minister ultimately found that it would be in the best interests of Mr Hunt’s children not to cancel Mr Hunt’s visa because of, inter alia:

    The negative impact Mr Hunt’s removal would have on the children (including by reference to the view of Dr Yoxall that the cancellation of Mr Hunt’s visa would result in substantial distress and trauma to the children); and

    The effect of relocating the children to New Zealand, including separation from other family members.

28    The Minister also considered the best interests of Mr Hunt’s two minor sisters, his two minor nephews, and his five minor nieces, finding that it was also in their best interests not to cancel Mr Hunt’s visa.

29    Turning to consider the expectations of the Australian community, the Minister acknowledged the submissions made by Mr Hunt’s representative, including:

    the length of Mr Hunt’s stay in Australia, being some 24 years;

    the fact that Mr Hunt had not reoffended since November 2012;

    Mr Hunt’s rehabilitation;

    the high level of Mr Hunt’s acceptance of responsibility for his actions;

    the negative impact Mr Hunt’s removal would have on his family; and

    that a reasonable member of the Australian community would not expect Mr Hunt’s visa to be cancelled.

30    The Minister found, however, that the Australian community would expect non-citizens to obey Australian laws while in Australia. Further, given the very serious nature of Mr Hunt’s offences, the Minister concluded that the Australian community would expect that Mr Hunt should not hold a visa.

31    When considering Mr Hunt’s ties to Australia, the Minister had regard to the strength, nature and duration of those ties. The Minister found that Mr Hunt has resided in Australia for some 24 years and had strong family and personal ties to Australia. Given the length of time Mr Hunt had lived in Australia and the fact that he had lived in Australia from a young age, the Minister considered that the Australian community could afford him a higher tolerance of his criminal conduct.

32    The Minister referred to submissions from Mr Hunt’s wife, including her extreme distress at the prospect that Mr Hunt would be removed from Australia, as well as the 31 letters of support from Mr Hunt’s family and friends describing the close bond they shared with Mr Hunt and the negative effect on them should Mr Hunt be removed from Australia. The Minister noted the report from Dr Yoxall stating that the cancellation of Mr Hunt’s visa would result in substantial distress and trauma to Mr Hunt’s wife, parents and siblings.

33    The Minister found that Mr Hunt had contributed to the Australian community through his employment and his involvement with the community, including volunteer work.

34    Finally, the Minister considered the extent of impediments if Mr Hunt were to be removed from Australia. The Minister noted that Mr Hunt was aged 30, and anxious about being removed to New Zealand. The Minister acknowledged the obstacles Mr Hunt would face in establishing himself and maintaining basic living standards in the context of what was generally available to other New Zealand citizens. The Minister continued:

104.    I have given regard to Mr HUNT’s concerns about returning to New Zealand including facing financial hardship, physical and emotional health issues, having no positive influences close family or the same support networks there, seeing New Zealand as a foreign place and not being accustomed to their way of life, having uncertain housing and uncertain prospects for employment and being distressed that his past conduct caused his separation from his wife and children or caused them to be uprooted from their life in Australia.

105.    I also note Mr HUNT’s representative notes that cancellation of Mr HUNT’s visa would permanently exclude Mr HUNT from remaining in, or returning to Australia.

35    The Minister acknowledged the serious effect returning to New Zealand would have on Mr Hunt’s mental health, and the health and wellbeing of his family, as well as the risks of Mr Hunt falling in with extended family who were engaged in criminal behaviour. However, the Minister noted that Mr Hunt was unlikely to face any substantial language or cultural barriers if he returned to Australia. The Minister accepted that Mr Hunt would suffer significant hardship should he return to New Zealand given the length of his stay in Australia and Australian family ties, however the Minister considered:

    that Mr Hunt was relatively young at age 30; and

    having been employed in Australia may assist in Mr Hunt’s resettlement in New Zealand.

36    The Minister also found that, as a New Zealand citizen, Mr Hunt would be eligible for the same social, financial and health services as other citizens of New Zealand. As such, the Minister found that Mr Hunt would be able to maintain basic living standards in line with other New Zealand citizens.

37    Weighing up these considerations, the Minister found, in summary, that the Australian community could be exposed to great harm should Mr Hunt reoffend in a similar fashion, and that the Australian community should not tolerate any further risk of harm. The Minister considered that where great harm could be inflicted, even strong countervailing considerations would not preclude cancellation of a visa, and Mr Hunt represented an unacceptable risk of harm to the Australian community. The protection of the Australian community outweighed any countervailing considerations, so the Minister decided to exercise his discretion to cancel Mr Hunt’s visa.

Application before the court

38    On 13 April 2021, I ordered the applicant be granted leave to file and rely on an amended originating application annexed to the affidavit of Mr Joel McComber (the applicant’s lawyer) filed on 30 March 2021. In his amended originating application Mr Hunt sought the following relief:

1.    An order in the nature of certiorari issue quashing the Respondent’s decision dated 22 July 2020 to cancel the Applicant’s visa under s 501(2) of the Migration Act 1958.

2.     An order of mandamus issue to the Respondent requiring the Respondent to consider the cancellation of the Applicant’s visa under s 501(2) of the Migration Act 1958 in accordance with law.

3.     An order requiring the Respondent to pay the Applicant’s costs of this application.

(Emphasis in original).

39    In support of the relief sought, the applicant relied on the following three grounds:

1.     The Respondent’s decision dated 22 July 2020 is affected by jurisdictional error as the Respondent failed to engage in a genuine consideration of significant and clearly expressed matters raised by the Applicant in response to the Notice of Intention to Consider Cancellation issued to the Applicant under s 501(2) of the Act, namely:

(a)     the length of time the Applicant had been living in the Australian community since his last criminal offending; and

(b)     the permanent exclusion of the Applicant from Australia that would flow from a cancellation decision.

Particulars

A.     In determining whether to exercise the cancellation power conferred by s 501(2) of the Migration Act 1958, the Respondent was obliged to consider representations made by the Applicant in response to the Notice of Intention to Consider Cancellation and to engage in an active intellectual process with each significant and clearly expressed representation.

B.     The Applicant, through his representative, made the following clearly expressed representations to the Respondent:

(i)     the length of time that had elapsed since the Applicant’s last criminal offending was a significant matter weighing against cancellation, particularly in the context of considering the Applicant’s risk of reoffending;

(ii)     the permanent exclusion of the Applicant from Australia that would result from cancellation was a significant matter weighing against cancellation.

C.     In considering whether to exercise the discretionary cancellation power conferred by s 501(2), the Respondent failed to give genuine consideration to either the length of time that had elapsed since the Applicant’s most recent criminal offending, or the permanency of the Applicant’s exclusion from Australia that would result from an exercise of the discretion.

2.     The Respondent’s decision dated 22 July 2020 is affected by jurisdictional error as the Respondent’s failure to give genuine consideration to the time that had elapse since the Applicant’s last criminal offending was unreasonable in the legal sense.

Particulars

A.     In determining to exercise the discretion to cancel the Applicant’s visa under s 501(2), the Respondent relied heavily, if not exclusively, on the risk of harm the Applicant’s continued presence in Australia posed to the Australian community.

B.     In considering the risk of harm posed to the Australian community by the Applicant, the Respondent did not consider the seven and a half years that had elapsed since the Applicant’s last criminal offending.

C.     The Respondent was not prima facie obliged to consider the Applicant’s risk of reoffending when determining whether to exercise the discretion conferred by s 501. Indeed, the Respondent was not prima facie obliged to give consideration to any particular issue. However, in deciding to consider the Applicant’s risk of reoffending when determining whether to exercise the discretion, the Respondent was required to act reasonably.

D.     The Respondent’s failure to genuine [sic] consider, or have regard to, the period that had elapsed since the Applicant’s last criminal offending in the context of considering the Applicant’s risk of reoffending was unreasonable in the legal sense. In the circumstances of the Applicant’s case, no reasonable decision-maker could have conducted a genuine and reasonable assessment of the Applicant’s risk of reoffending without having regard to that length of time.

3.     The Respondent’s decision dated 22 July 2020 is affected by jurisdictional error as the Respondent’s finding that the Applicant “represents an unacceptable risk of harm to the Australian community” was illogical and irrational in the context of the antecedent findings made by the Respondent.

Particulars

(a)     In considering the risk posed by the Applicant to the Australian community, the Respondent found that there was a risk the Applicant would reoffend, but did not make any finding quantifying that risk or comparing that risk to any other member of the Australian community.

(b)     In circumstances where the Respondent did not make any finding, nor sought to make any finding, quantifying the Applicant’s risk of reoffending, the Respondent’s ultimate finding that the risk of harm represented by the Applicant was unacceptable was illogical and irrational.

consideration

40    In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 the Full Court of this Court gave detailed consideration to the power of the Minister to cancel a visa under s 501(2) of the Migration Act. In Stretton, Griffiths J (with which Allsop CJ and Wigney J agreed) observed at [64] et seq that the Minister’s discretion to cancel a visa under s 501(2) was substantially unfettered in the sense that there was no express list of factors which the Minister was required to take into account in deciding whether or not to exercise the power, however there were limits to the exercise of the power including:

    The Minister’s power to cancel a visa was only enlivened if the Minister “reasonably suspects” that the visa-holder did not pass the character test as defined in s 501(6) and the visa-holder did not satisfy the Minister that the person passed the character test.

    The Minister may not act arbitrarily, capriciously or legally unreasonably. The subject matter, scope and purpose of the Migration Act may also require that certain considerations be taken into account.

    There was a presumption that the Parliament intended the Minister’s discretion to be exercised reasonably in the legal sense of that word.

    The Minister’s discretion under s 501(2) was broad.

    The power to either refuse to grant or to cancel a visa was a substantive power.

41    Stretton has been followed by this Court both at first instance and on appeal: see for example Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 and most recently Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63 at [53].

42    The reasons for decision of the Minister in the present case, in refusing to revoke the cancellation decision concerning the visa of the applicant, are detailed. The key issues raised by Mr Hunt before me concern whether:

    the Minister genuinely engaged with issues referable to:

•    The time that had elapsed between Mr Hunt’s last offence and the cancellation decision (ground 1(a), ground 2), and

•    The permanency of Mr Hunt’s exclusion from Australia that would result from the cancellation decision (ground 1(b); and

    the Minister’s finding that Mr Hunt represented an “unacceptable risk” was illogical and irrational in the context of the antecedent findings made by the Minister (ground 3).

Grounds 1(a) and 2: genuine consideration of the time that had elapsed between Mr Hunt’s last offence and the cancellation decision

43    Grounds 1(a) and 2 can properly be considered together, as both grounds claim jurisdictional error by reason of the claimed failure of the Minister to engage in genuine consideration of matters raised by Mr Hunt referable to the length of time he has lived in the Australian community without offending. Ground 2 claims that the failure of the Minister to engage in genuine consideration of such matters was unreasonable.

44    Mr Hunt submitted that, in responding to the Notice, he made specific representations regarding his risk of reoffending. These representations were to the effect that the risk of any further criminal offending by him was minimal and remote. This was in circumstances where almost seven years had elapsed between the time of the last offending and the date the Notice was issued, during which time Mr Hunt lived unsupervised in the community.

45    The applicant further submitted that, given the centrality of Mr Hunt’s risk of reoffending to the Minister’s ultimate decision, the Minister was required to do more than simply note submissions concerning the risk of reoffending. Rather the Minister would have had to engage with the issue in an active intellectual process.

46    By reference to the Minister’s reasons, it was clear that the Minister was mindful of Mr Hunt’s criminal history, and was well aware of the most recent time that Mr Hunt had offended. The Minister also had extensive regard to Dr Yoxall’s psychological report and the letters supporting Mr Hunt which referred to the length of time which had elapsed since his last offending. In particular I note specific observations of the Minister in his reasons:

    at [50], that Mr Hunt had not reoffended in the period of six years and 10 months prior to the report of Dr Yoxall;

    at [53], that Mr Hunt’s lawyer stated that Mr Hunt had not reoffended since 2012; and

    at [82], that Mr Hunt had not reoffended since November 2012 despite living unsupervised in the community.

47    These observations of the Minister were made in the context of considering the risk of Mr Hunt reoffending, and the expectations of the Australian community.

48    Reading the Minister’s reasons as a whole, it is apparent that the Minister placed weight on Dr Yoxall’s view that, although Mr Hunt’s risk of reoffending in terms of violence was low, it was dependent on his ongoing abstinence from alcohol and avoidance of negative social influences (at [62]). At [115] the Minister concluded that the inability to rule out the possibility of further offending by Mr Hunt outweighed the countervailing considerations in Mr Hunt’s case “including the best interests of the child treated as a primary consideration, impact on his wife and family members, his length of residence in Australia and the hardship he will face in resettling in New Zealand”.

49    In my view it cannot be said that, in his consideration of the risk of Mr Hunt reoffending, the Minister failed to genuinely consider the elapse of time since Mr Hunt last offended. I am not persuaded that the Minister simply noted the relevant time period without intellectual engagement – militating against this is the repetition by the Minister throughout his reasons of the relevant elapse of time, and the Minister’s conclusion at [115].

50    Grounds 1(a) and 2 are not substantiated.

Ground 1 (b): genuine consideration of the permanent exclusion of Mr Hunt from Australia that would flow from a cancellation decision

51    In respect of this ground Mr Hunt relied on submissions made to the Minister by Mr Hunt’s representatives in response to the Notice. In summary Mr Hunt’s representatives submitted:

    permanent exclusion of Mr Hunt from Australia was a non-prescribed consideration that was relevant;

    the effect of s 501E of the Migration Act was that, if Mr Hunt’s visa was cancelled, he would be prohibited from applying for any visa other than a protection visa (which was not available) or a Bridging Visa R (Bridging Visa Pending Removal);

    cancellation of his visa meant he would be liable to be removed from Australia under s 198 of the Migration Act, and would not be eligible to apply for a bridging visa on departure grounds;

    after removal from Australia Mr Hunt would no longer be eligible to be granted any Special Category (subclass 444) visa as he would fall within the definition of behaviour concern non-citizen as prescribed in s 5 of the Migration Act; and

    cancellation of Mr Hunt’s visa meant he would be unable to satisfy Special Return Criteria 5001 at any time in the future.

52    The Minister submitted, in summary, that he made findings of greater generality, namely that Mr Hunt would suffer significant hardship and emotional hardship should he return to New Zealand. It followed, in the Minister’s submission, that no error had been demonstrated in relation to the permanency of Mr Hunt’s exclusion from Australia, or in identifying how any error would be material.

53    Clearly intertwined with the issue of permanency of exclusion from Australia is the issue of Mr Hunt’s ties to Australia. Indeed, I consider it likely that the stronger a visa-holder’s ties to Australia, the greater the consequences of permanent exclusion of the visa-holder from Australia in the event that the visa is cancelled.

54    The issue of Mr Hunt’s ties to Australia was the subject of discussion by the Minister as follows:

86.     I have had regard to the strength, nature and duration of Mr HUNT’s ties to Australia.

87.     Mr HUNT, now aged 30, first arrived in Australia on 28 August 1994, aged four. He has departed Australia on five occasions since his arrival and remained offshore for a cumulative total of some 17 months. Mr HUNT has resided in Australia for some 24 years.

88.     As Mr HUNT has lived in Australia from a young age, I hold the view that the Australian community may afford him a higher tolerance of his criminal conduct.

89.     Mr HUNT’s wife, three minor children, parents and six siblings reside in Australia. Mr HUNT also has 30 uncles/aunts, 15 nieces/nephews and 120 cousins residing in Australia.

90.     I note Mr HUNT’s relationship with his Australian citizen wife commenced on 14 September 2006 and they were married on 29 November 2014.

91.     I have considered submissions from Mr HUNT'S wife and I note Mrs Hunt considers she would be physically and emotionally destroyed if Mr HUNT was removed from Australia. Mrs Hunt states she has been emotionally distressed and constantly worried about her and her children's future since receiving the Notice regarding possible visa cancellation. Mrs Hunt states she already has a great deal to worry about with her pregnancy and caring for two very young children. She cannot imagine a life without her husband. Mrs Hunt states she has built a life here in Australia and that she and her husband are very family orientated and very close to their whole family. Mrs Hunt is unsure whether she would relocate to New Zealand should Mr HUNT be removed. If she were to relocate, Mrs Hunt is concerned about the negative impact of not being surrounded by family and friends, finding employment, providing for her family, being separated from her church and the high rate of gangs and criminal activity in New Zealand. If Mrs Hunt chose to remain, she states she may travel to New Zealand once or twice a year to visit Mr HUNT.

92.     I note Mr HUNT is currently employed and the sole income earner for his family while his wife is on unpaid maternity leave until 27 October 2020. I also note Mr HUNT states his wife’s career will be impacted if he was removed and that she would need to care and provide for their children on their own.

93.     I note Mr HUNT states he is very close and shares a special bond with all his family.

94.     I have considered 31 letters of support from Mr HUNT'S family and friends describing the close bond they share with Mr HUNT and stating they will be negatively impacted should Mr HUNT be removed from Australia. In particular, I note Mr HUNT'S parents state their family and Mr HUNT'S wife's family have developed anxiety and distress over the possibility of his removal and his removal will cause them great pain and heartache. Mr HUNT'S parents-in-law state Mr HUNT'S removal will be devastating for their immediate, extended and church family. Mr HUNT'S brothers state Mr HUNT is the core of their family and they do not know what they would do without him. I also note Mr HUNT'S sister describes the difficulties she faced as a single mother and the help she received from Mr HUNT.

95.     I note the psychological report from Dr Jacqui Yoxall states that the cancellation of Mr HUNT'S visa would result in substantial distress and trauma to Mr HUNT'S wife, parents and siblings.

96.     I have considered the effect of visa cancellation upon Mr HUNT'S wife in Australia and accept that she would experience emotional, practical and financial hardship. However, while Mr HUNT indicates his wife would need to care and provide for their children on their own, I note the psychological report dated 10 September 2019 stated Mr HUNT and his family were residing with his wife's parents.

97.     I have also considered the effect of visa cancellation upon Mr HUNT'S immediate and extended family, his wife's family and his friends and accept they would experience emotional hardship.

98.     I note Mr HUNT states he has built a life here in Australia with his wife and children and they plan to build their dream home together and continue serving at their church.

99.    I note Mr HUNT completed primary and secondary education in Australia. Mr HUNT has also been employed whilst here in various positions since his release from prison.

100.     I note Mr HUNT’s wife states Mr HUNT volunteers at their local church and from 2014 to 2017, he organised a training program for young mothers and women to guide them into a healthier and active lifestyle. Mr HUNT’s parents-in-law confirm Mr HUNT’s involvement in their church and state he is a positive influence to the youth at their church and the psychological report states Mr HUNT has been heavily involved in rugby from a young age.

101.     I find that Mr HUNT has resided in Australia for some 24 years and has family and personal ties to Australia. I also find he has contributed to the Australian community through his employment and his involvement with the community, including volunteer work.

55    As I have already noted, at [115] the Minister concluded:

115.     I found the above consideration outweighed the countervailing considerations in Mr HUNT’s case, including the best interests of the child treated as a primary consideration, impact on his wife and family members, his length of residence in Australia and the hardship he will face in resettling in New Zealand. I have also considered the length of time Mr HUNT has made a positive contribution to the Australian community and or the consequences of my decision for minor children and other family members.

56    In Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628; [2018] FCAFC 225, Allsop CJ observed as follows:

3.    By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

(Emphasis added.)

57    The comments of the Chief Justice have been followed in numerous instances, including by subsequent Full Courts in Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 165 and Meyrick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 209.

58    With these principles in mind the question arises as to whether, in this case, the Minister has genuinely considered the human consequences of the permanent exclusion of Mr Hunt by cancellation of his visa, referable to his ties to Australia.

59    Notwithstanding the discussion in the reasons of the Minister at [86]-[101], a number of matters of substance are in my view cause for concern.

60    First, and in particular, while the Minister had regard to the elapse of time between the last offending by Mr Hunt and the date of the Notice in the context of assessment of the risk of Mr Hunt reoffending in Australia, the Minister has not had regard to the impact on Mr Hunt’s ties to Australia of the undisturbed passage of such a lengthy period as seven years following Mr Hunt’s last offending, during which time no Notice was served on him. The material before the Minister indicated that during those seven years Mr Hunt’s personal and family circumstances entirely changed, including that he had created a new family by marrying his Australian wife and fathering three Australian children.

61    This raises different issues from such considerations as the best interests of Mr Hunt’s minor children. Rather, the key issue here is whether the Minister had regard to the fact that the dislocation and hardship arising if Mr Hunt were forced to return to New Zealand could be seen as significantly different from that which had existed in 2012. The Minister acknowledged that seven years had passed since the last offending by Mr Hunt. However, it is not evident to me that, in his reasons, the Minister considered the broader consequences of the elapse of this lengthy period of time, and the fact that a person in Mr Hunt’s position could, and did, over that time, and in possible reliance on the lack of any sign (or apparent triggering event) that he was at imminent risk of visa cancellation, continue to significantly strengthen his ties to Australia. As Allsop CJ, Kenny and Banks-Smith JJ observed in Minister for Home Affairs v Brown (2020) 275 FCR 188; [2020] FCAFC 21 at [30]:

30.     That said, for a person to have his or her immigration status uncertain and subject to the discretion of the Minister, for an indeterminate period may create, in particular circumstances, an unsatisfactory and potentially inhumane contingency about that person’s life in the Australian community.

62    Second, while the Minister has acknowledged the distress and emotional hardship to Mr Hunt’s wife and children from the prospect of his removal from Australia, it is not clear to me that the Minister has given genuine consideration to the impact on Mr Hunt’s wife should his visa be cancelled. At [91] the Minister recited Mrs Hunt’s concerns. At [96] of his reasons the Minister observed:

96.     I have considered the effect of visa cancellation upon Mr HUNT'S wife in Australia and accept that she would experience emotional, practical and financial hardship. However, while Mr HUNT indicates his wife would need to care and provide for their children on their own, I note the psychological report dated 10 September 2019 stated Mr HUNT and his family were residing with his wife's parents.

(Emphasis added.)

63    To the extent, after “noting” Dr Yoxall’s report, the Minister formed the view that Mrs Hunt’s emotional, practical and financial needs could be addressed by ongoing dependence by her on her parents, namely by herself and her infant children residing with her parents, it is difficult to identify the basis on which the Minister can so conclude. The statement by the Minister at [96] assumes that Mrs Hunt’s parents are, and will continue to be, prepared and able to countenance ongoing residence by Mrs Hunt and her three small children with them, and be prepared and able to provide ongoing assistance of Mrs Hunt in relation to the children, potentially indefinitely. There is also the additional issue of Mrs Hunt having a full-time career of her own, in respect of which Mr Hunt provided support by caring for their children. Reference to Dr Yoxall’s report stating that “Mr Hunt and his family were residing with his wife’s parents” is not indicative of genuine consideration of the issue of hardship Mrs Hunt will face if Mr Hunt’s visa is cancelled, and is suggestive of a formulaic response to that hardship on removal of Mr Hunt from Australia.

64    Third, to the extent that the Minister found at [109] that the fact of Mr Hunt’s previous employment in Australia “may assist in his resettlement in New Zealand”, it is unclear whether there was evidence before the Minister to support this finding, other than the fact that Mr Hunt had apparently been employed in Australia. The nature of Mr Hunt’s employment, or the history of his employment, are not explained in the Minister’s reasons. In reviewing the material before the Court I note statements by Dr Yoxall in her report that “Mr Hunt is employed doing fly in fly out labour work for railway shutdowns” and that as at 5 September 2019 he had accepted an offer to return to full time work. How this experience and any associated skills would “assist [him] in his resettlement in New Zealand” is not set out in the Minister’s decision.

65    Further, and perhaps more importantly, while the Minister referred throughout his reasons to Mr Hunt being employed in Australia (at [50], [60], [67], [92], [99], [101]), the Minister also at [107] noted Dr Yoxall’s observation that Mr Hunt does not have networks for employment or social connections that would support him to be able to establish a successful life in New Zealand. That evidence of Dr Yoxall supports an inference that Mr Hunt’s employment in Australia was achieved through his employment or social connections in Australia. Given that Mr Hunt has a significant, albeit now dated, criminal history, it is further unclear how in the absence of those Australian employment or social connections, the Minister was able to reach his conclusion expressed at [109]. On the material before the Court, a finding that Mr Hunt’s previous employment in Australia “may assist in his resettlement in New Zealand” appears to be a formulaic statement rather than the result of genuine consideration of this issue.

66    The reasons of the Minister are detailed, however I am satisfied that there has been an absence of genuine consideration of important aspects of Mr Hunt’s ties to Australia, and the consequent impact of permanent exclusion from Australia by his removal to New Zealand.

67    In my view ground 1(b) is substantiated.

Ground 3: whether the Minister’s finding that Mr Hunt represented an “unacceptable risk” was illogical and irrational

68    Illogical reasoning by a decision-maker on the way to a final conclusion may establish jurisdictional error: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 610; [2010] HCA 16 at [132] (Crennan and Bell JJ). Crennan and Bell JJ further explained the concepts of illogicality and irrationality in this context, as follows:

129.    It can be acknowledged that the contemporary invocation of "illogicality" or "irrationality" as a basis for judicial review may well have first emerged in Australia, as intimated by Gleeson CJ in S20, as a reaction to the ouster of the review ground of "Wednesbury unreasonableness" in immigration law. Equally it may be that the development of "irrationality" as a basis for judicial review in England grew out of dissatisfaction with the inherent circularity of the Wednesbury test and the implicit suggestion in Wednesbury that there were degrees or grades of unreasonableness. Be that as it may, accepting that an allegation of "illogicality" or "irrationality" must mean something other than emphatic disagreement as explained above by reference to Eshetu and S20, and also accepting that a demonstration of bona fides will not save an illogical or irrational decision or finding on a jurisdictional fact as stated in SGLB, how do "illogicality" and "irrationality" fit with the clearly related body of law concerned with error, particularly jurisdictional error, in respect of reasoning which is "clearly unjust", "arbitrary", "capricious" or "Wednesbury unreasonable"?

130.    In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

131.    What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

(Footnotes omitted, emphasis added.)

69    It is also clear that, before characterising the illogical or irrational reasoning, or conclusion, as an error going to the jurisdiction of the decision-maker, it is necessary for the Court to be satisfied that the illogical or irrational reasoning was “material” to the ultimate decision, in the sense that it deprived the appellant of the realistic possibility of a successful outcome, with the onus being on the party alleging the error was material: CGA15 v Minister for Home Affairs (2019) 268 FCR 362; [2019] FCAFC 46 at [59]; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [30]- [31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [2]-[4], [41] and [48]-[49].

70    Further, and relevantly in respect of this ground of review, I note that in ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 Griffiths, Perry and Bromwich JJ observed:

47.    Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” … Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error …

(Emphasis added.)

71    In respect of this ground the applicant submits, in summary, that in the absence of either:

    a finding quantifying Mr Hunt’s risk of reoffending (and not merely that a risk of reoffending exists); or

    a finding that any risk of reoffending and/or harm was unacceptable,

the Minister’s ultimate finding that the applicant posed an “unacceptable risk of harm” was unintelligible, because nothing in the Minister’s written reasons provided any explanation for why the risk of harm posed by Mr Hunt to the Australian community was unacceptable.

72    Reading the Minister’s reasons carefully, however, I am not persuaded that the antecedent findings of the Minister leading to his ultimate finding that Mr Hunt posed an unacceptable risk of harm were illogical or irrational. In summary:

    At [63] the Minister found that, taking into account Dr Yoxall’s report and her view that Mr Hunt’s risk of reoffending in terms of violence was low but dependent upon his ongoing abstinence from alcohol and negative social influences, there was a risk that Mr Hunt would reoffend.

    At [64] the Minister found that, if Mr Hunt did engage in further criminal conduct of a nature to that in which he had previously engaged, including that which resulted in the loss of a person’s life, it could result in conduct that could cause psychological and/or physical harm to a member of the Australian community.

    At [82]-[84] the Minister outlined his understanding of the expectations of the Australian community, including his conclusion that Mr Hunt as a non-citizen had breached the trust that Mr Hunt as a non-citizen would obey Australian laws while in Australia.

    At [114] the Minister concluded that the Australian community could be exposed to great harm should Mr Hunt reoffend in a similar fashion, that the Minister could not rule out the possibility of further offending by Mr Hunt, and that the Australian community should not tolerate any further risk of harm.

73    I accept the submission of the Minister that, having regard to the broad nature of the Minister’s discretion and the fact that at least one of the purposes served by the power conferred upon the Minister under s 501(2) of the Migration Act is to protect the Australian public (Stretton at [75]), it was within the Minister’s authority to come to the view that Mr Hunt represented an unacceptable risk of harm in respect of any reoffending by him. As Wheelahan J recently observed in Gater v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 104 at [36]:

36.    … 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).

74    Ground 3 is not substantiated.

Conclusion

75    Ground 1(b) of the amended originating application filed on 30 March 2021 is substantiated. It follows that the relief sought by the applicant is granted, including costs.

Associate:

Dated:    14 May 2021