Federal Court of Australia

McRoy v Minister for Home Affairs (No 3) [2021] FCA 744

ORDERS

THE COURT ORDERS THAT:

1.    An extension of time be granted to the applicant for the filing of an originating application up to and including 28 May 2021.

2.    The originating application as so filed be heard and determined instanta.

3.    The application be dismissed.

4.    The applicant pay the respondent’s costs of and incidental to the application, to be fixed by a Registrar if not agreed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    Mr James Daniel McRoy (Mr McRoy) was born in New Zealand on 10 May 1986. He is thus a New Zealand citizen by birth. When he was one year old, Mr McRoy migrated to Australia with his parents. Unremarkably, that was a lawful migration. His residence here until recently has been permitted by a Class TY Subclass 444 Special Category (Temporary) Visa issued pursuant to the Migration Act 1958 (Cth) (Migration Act). As his possession of a visa indicates, at no stage following his migration to Australia in 1987 has Mr McRoy applied for, much less been granted, Australian citizenship. He is thus, in the eyes of Australian law, an alien: see Love v Commonwealth (2020) 94 ALJR 198.

2    That is so notwithstanding the length of his residence in Australia. On any view, the length of his Australian residence and his living, working and forming relationships and fathering a child in Australia would suggest that long ago he ceased to be an “immigrant”, as that term is understood for constitutional purposes in terms of Commonwealth legislative competence with respect to immigration: see as to this the recent discussion of authority by the Full Court in Minister for Home Affairs v Lee [2021] FCAFC 89. But the result of amendments now long ago made to the Migration Act changed the focus of that Act in terms of the power to deport from those who did not possess entry permits and who were immigrants to those who are aliens and without a visa.

3    On 7 December 2020, as a result of a decision made personally by the then Minister for Home Affairs, the Honourable Peter Dutton MP, Mr McRoy’s visa was cancelled pursuant to the power granted to the Minister under s 501(2) of the Migration Act. As an alien present in Australia without a visa, he became amenable to deportation. Indeed, the Minister became subject to a duty to deport him as soon as reasonably practical: see s 198 of the Migration Act.

4    In April of this year, in circumstances of quite some urgency, I made orders the effect of which is to restrain until the hearing and determination of the present application the deportation of Mr McRoy from Australia to New Zealand: see McRoy v Minister for Home Affairs [2021] FCA 537 and McRoy v Minister for Home Affairs (No 2) [2021] FCA 538.

5    Mr McRoy’s application is for an extension of time within which to seek judicial review of the Minister’s decision and, if an extension be granted, for that decision to be quashed on the basis of jurisdictional error. An extension of time is necessary in that no originating application for judicial review was filed within the 35 day time limit prescribed by the Migration Act. Rather, the extension of time application was not filed until 27 April 2021.

6    An explanation for the delay is offered by Mr McRoy’s present solicitor, Mr Burrows, in an affidavit filed on 27 April 2021 and read without objection today. The Minister does not concede that there is a case for an extension of time. As I mentioned in an earlier interlocutory judgment, the impact of a combination of being taken into immigration detention, itself a lawful act by the Minister, in conjunction with relative, apparent impecuniosity, and uncertainties introduced into life’s ordinary discourse by the persisting present pandemic, are not to be diminished.

7    Further, the grounds of review as proposed, which I canvass below, are, at least in respect of the procedural fairness denial allegation, sufficiently arguable in themselves to warrant the granting of an extension of time. The case was never one for disposal summarily. The views to which I have come are views which were necessarily informed by a trial and the opportunity that offered for a detailed scrutiny, assisted by relevant submissions, of the process which led to the Minister’s decision and of the Minister’s reasons for that decision.

8    Taking into account the explanation offered in conjunction with the proposed grounds of review, I consider the case one which warrants the granting of an extension of time up to and including the date upon which an originating application for review of the Minister’s decision came to be filed on 28 May 2021. The real question in this case is not whether or not to grant an extension, but whether or not the grounds pleaded in the originating application as amended are such as to warrant the quashing of the Minister’s decision?

9    Those grounds as pleaded in the amended originating application are as follows:

1.    That the Applicant was denied procedural fairness, in that:

a.    The decision of the Respondent was made, in part, upon material that was not capable of informing the decision of the Respondent and to which the Applicant could not have reasonably been expected to respond;

Particulars:

The Respondent’s decision was based upon materials provided to the Applicant in the originating Notice of Intention to Consider Cancellation of Visa, dated 23 October 2019 and subsequently as ‘Annexure F’ to the Statement of Reasons for refusal of the Respondent's decision to revoke the cancellation of the Applicant’s visa dated 07 December 2020, concerning the “Mongrel Mob” and its (the Mongrel Mob’s) past or alleged criminal conduct, which;

a)    The Respondent failed to provide any particularisation to the Applicant that would have allowed the Applicant to know how the material was relevant to the Respondent's decision to revoke the cancellation of the Applicant's visa, or enable the Applicant to provide a meaningful response addressing the materials intended use;

b)    The material was of a quality and kind that could not enable the Applicant to determine its intended use in order to meaningfully respond, in that;

a.    The material did not relate to the Applicant or any person known to the Applicant; and

b.    The material was comprised entirely of printed online media publications, containing hearsay, inflammatory language, unproven allegations, allegations from alternate state and international jurisdictions, and allegations that pre and post-dated the Applicant's association with the Mongrel Mob; and

c.    The relevant of the material was not capable of being inferred by the Applicant in the way that it is ultimately used by the Respondent.

c)    The material was not capable of assisting the Respondent in informing its decision, in that;

a.    The material was irrelevant to the purposes of which it was used;

b.    Had no correlation to the decision before the Respondent; and

c.    Was fundamentally unreliable in nature;

d)    Given the adverse conclusions drawn from the material by the Respondent, and the abstract nature of the material and its intended use, the failure of the Respondent to particularise the way in which the material was intended to be used, constituted a clear and unremedied disadvantage to the Applicant and a denial of procedural fairness.

2.    The Respondent’s reliance upon the material and the adverse conclusions drawn by the Respondent, against the Applicant, in considering that material as part of its decision resulted in jurisdictional error, in that;

a.    The discretionary decision vested in the Respondent miscarried and was not exercised according to law, in that:

i.    The reliance upon that material and/or the adverse conclusions drawn from the material were unreasonable in a legal sense; and

ii.    The decision and reasoning used by the Respondent in reliance upon that material, insofar as it was capable of informing the Respondent's decision on relevant statutory considerations was illogicality and/or irrational;

Particulars:

The Respondent’s use of the materials, attached to the Notice of Intention to Cancel Visa dated 23 October 2019 and subsequently as ‘Annexure F’ to the Statement of Reasons for refusal of the Respondent’s decision to revoke the cancellation of the Applicant’s visa dated 07 December 2020, concerning the “Mongrel Mob” and it (The Mongrel Mob’s) past or alleged criminal conduct;

a)    Assumed the accuracy and reliability of the source materials, without a reasonable foundation or logic for doing so;

b)    Imparted a relevance upon that material to its consideration of the Applicant’s character that was unreasonable in the legal sense and illogical;

c)    Applied selectively, information contained within the material, to draw adverse conclusions against the Applicant’s character in a way that was unreasonable, in the legal sense;

d)    Used the material to draw adverse conclusions against the Applicant that were unsupported by the material other than by inferential ‘guilt by association’; and in circumstances where such adverse conclusions were not available on the face of the material and therefore unreasonable in the legal sense and/or irrational/illogical.

3.    That the Respondent fell into jurisdictional error in failing to give proper consideration to matters relevant to the exercise of its discretion, that was unreasonable in a legal sense, by;

a.    In assessing the question of “risk” to the Australian community based upon material before the Respondent that could not reasonably inform its assessment of any risk posed by the Applicant, and drew conclusions that were both; adverse to the Applicant; and reasoned through a process that was both unreasonable in the legal sense and/or illogical; or (if the material is considered capable of informing the decision)

i.    Failed to conduct a proper intellectual assessment of the materials by failing to properly consider or provide reasons as to why equally available inferences that were favourable to the Applicant were not considered, or disregarded entirely.

10    It is fair to say of those grounds that, as developed in oral submissions, two broad subjects of alleged jurisdictional error emerged:

(a)    an alleged denial of procedural fairness; and

(b)    that the decision in terms of its outcome was, in all of the circumstances, unreasonable.

11    The latter ground of review included as a separate, although not unrelated, allegation that there was an illogicality or irrationality in the Minister’s reasoning to the conclusion that he should cancel Mr McRoy’s visa. I shall now consider each of these grounds in turn.

Procedural fairness

12    There was no contest between the parties that the exercise of the Minister’s power to cancel a visa under s 501 of the Migration Act was attended with a procedural fairness obligation. That joint position is sound in law: see Kioa v West (1985) 159 CLR 550 (Kioa v West), at 584, per Mason J, as his Honour then was. As Mason J observed in that case, at 585, and is presently the case:

The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?

A little later in that case, at 587, his Honour stated:

But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter …

And then:

In this respect recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it.

13    It was this latter observation by Sir Anthony Mason which informed a thoughtful submission made on behalf of Mr McRoy by his present solicitor, Mr Burrows, that in the circumstances of this particular case that essential feature of a procedural fairness obligation was deficient. Viewed in isolation, there is some occasion – with all due respect to the author within the Minister’s department of a letter dated 23 October 2019 sent to Mr McRoy giving notice of an intention to consider visa cancellation – for the proposition that the requirement voiced in Kioa v West by Sir Anthony Mason in the last passage just quoted has been violated. The letter is hardly a model of good public administration.

14    By that I mean that, whilst in the letter itself there references the criteria which attend the making of a decision under s 501(2) of the Migration Act and a ministerial direction, Direction 79, which would inform the making of that decision, one will look in vain to the letter for any identification of a potentially adverse factor which might be taken into account as a result of an enclosed amorphous mass of material concerning the “Mongrel Mob” derived from media and other articles. Yet the very act of enclosing such material must, inferentially and necessarily, have been informed by a view held by the author of the letter that potentially something adverse might be made with respect to Mr McRoy from the material enclosed. It would have been no great step to articulate quite what that something adverse was, hence the observation that the letter is hardly a model of good public administration.

15    For all that, procedural fairness is essentially directed to the end of preventing practical injustice. Recently in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17, at [46], Kiefel CJ and Gageler, Keane and Gleeson JJ observed in their joint judgment:

46    … To say that a demonstration that the appellant had been deprived of the opportunity of a successful outcome is an aspect of proof of procedural unfairness is necessarily to accept that procedural unfairness is a matter of practical injustice, so that a demonstration of a bare or merely technical denial of procedural fairness alone is not sufficient to establish an entitlement to a new trial.

Their Honours’ emphasis on a need to demonstrate practical injustice takes up an observation earlier made by Gleeson CJ in Re Minister for Immigration and Multicultural Affairs and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, at 13 – 14, [37] – [38].

16    So was there in the circumstances of this case, and notwithstanding the deficient nature of the letter of 23 October 2019 giving notice of intention to cancel, any practical injustice visited upon Mr McRoy? Answering that question requires, in the first instance, reference to a submission in response to the invitation extended in the department’s letter of 23 October 2019 by Mr McRoy’s then solicitors in a letter dated 21 January 2020.

17    Reference to [34] of that letter, and in turn to a statutory declaration made by Mr McRoy, enclosed with the letter, makes it plain that the enclosure of material concerning the Mongrel Mob was understood, both by Mr McRoy and his then solicitors, to require a response as to the nature and extent of his association with that gang, its duration and whether it was subsisting. In turn, that prompted not just a direct response in the form of Mr McRoy’s statutory declaration but also a statement concerning his involvement by his wife, Ms Kristyn Gardener.

18    Yet further, another enclosure to the solicitor’s response of 21 January 2020 was a report prepared by an experienced forensic psychologist, Dr Bowden, dated 20 January 2020. It is apparent from [43] of that report not just that Dr Bowden had been briefed with details of what was said to be a past association with the Mongrel Mob by Mr McRoy, but also that he identified as a risk factor in terms of prospective reoffending that particular association.

19    To complete an assessment of whether or not the letter of 23 October 2019 and its absence of specificity of potentially adverse factors occasioned any practical injustice, it is necessary to turn to the Minister’s reasons so as to understand the use which the Minister came to make of the material which was annexed to his department’s letter. It would do both the Minister and the nature of the submission made on behalf of Mr McRoy less than justice not to set out in full an extract from the Minister’s reasons in which, under the subject “Gang affiliation”, the Minister deals with the subject of what, if anything, to make of the material which had been annexed to his department’s letter and the responses made by and on behalf of Mr McRoy.

20    Under that heading, the Minister states:

33.    Mr MCROY’s social media suggests an association with members of the Mongrel Mob as recently as July 2019. I have had regard to screen shots dated 18 October 2019, accessed from a Face book profile under the name ‘James McRoy’. I note the cover photograph shows Mr MCROY with a group of men, making the hand gesture associated with the Mongrel Mob. I also note that one of the men has the Mongrel Mob emblem tattooed on his back. I have also had regard to screen shots dated 4 July 2019, from a Facebook profile under the name ‘James Kingdom’. I note the profile photograph shows Mr MCROY wearing the Mongrel Mob patched jacket. I also note he is shown wearing a Mongrel Mob tee shirt, with other Mongrel Mob branded clothing hanging in the background.

34.    In his statutory declaration dated 21 January 2020, Mr MCROY acknowledges that the photos are from his Facebook profile and that one of the photos shows him wearing the ‘clothing’ and another is a photo of ‘members at a birthday at the Club’.

35.    I consider the abovementioned social media profiles confirm that Mr MCROY was a member of, and had strong links with the Mongrel Mob at the time those photographs were taken.

36.    I have considered a range of media articles regarding the Mongrel Mob from the period 31 January 2017 to 4 October 2019. I note that in the article dated 31 January 2017, the Mongrel Mob are described as ‘New Zealand’s most notorious gang’, where they are ‘largely involved in violent crimes, property crime and street level drug dealing.’ I also note that the Mongrel Mob has established a number of chapters across various locations in Australia. Subsequent articles document the involvement of Mongrel Mob members in criminal incidents in Australia, including violent assaults, and knives and firearms offences. I note that some of these incidents involve violent conflicts with Outlaw Motorcycle Gang (OMCG) members.

37.    I have taken into account a media article from the Brisbane Times dated 26 July 2018 entitled ‘New Zealand gang to be outlawed in Queensland’, reporting that the Queensland government was taking steps to outlaw the Mongrel Mob as an ‘identified organisation’, similar to ‘bikie gangs’. The article reveals that the Queensland Attorney General told estimates hearings that the Mongrel Mob was ‘described as one of the most fearsome in the world’, and ‘an organisation with the attributes of an outlaw motorcycle gang ... who outside Queensland have been involved in murder, armed robberies, extortion, home invasion, firearms and drug offences.’

38.    I have considered the Queensland Government media release dated 26 July 2018, provided by Ms Aldersea, and note that the declaration to designate the Mongrel Mob an ‘identified organisation' with regard to the Liquor Regulation 2002 and the Serious and Organised Crime Legislation Amendment Act 2016 was to be approved that day. As a result of the declaration, the Mongrel Mob was prevented from wearing ‘their colours or logos in public’ for the purpose of ‘addressing and preventing violent, criminal and anti-social behaviour of gangs.’

39.    In having regard to the media article dated 10 March 2018 entitled ‘Mongrel Mob members sent home from WA to New Zealand as part of crackdown by state and federal authorities’ from The West Australian, I note that the Mongrel Mob had been ‘attempting to grow its presence in WA for the past two years by parachuting members into the State from other Australian chapters or directly from New Zealand.’ The Attorney-General was reported as saying that ‘plans were well advanced to introduce NSW-style anti-consorting laws which would give police power to prevent gang members associating with one another’ and it was hoped that the laws would be in place by the end of 2019.

40.    In light of these media articles detailing the history of the Mongrel Mob in New Zealand and documenting the concerns expressed by law enforcement and governments regarding the gang’s expansion into Australia, I consider the Mongrel Mob to be an organised crime group. While the Mongrel Mob is not strictly an OMCG, the gang has adopted the attributes of an OMCG such as wearing patched vests, being divided into territorial chapters, and their involvement in violent and organised criminal activity.

41.    I note from the Australian Criminal Intelligence Commission (ACIC) Facts Sheet dated 12 April 2019, that organised crime groups ‘pose a high threat to the Australian way of life’, and ‘engineer much of Australia’s serious crime’. Organised crime groups are described as being diverse, resourceful and resilient, ready to evolve and adapt to changes in the environment while looking for vulnerabilities to exploit for criminal gain.

42.    The ACIC Facts Sheet further states that OMCGs ‘are one of the most high-profile manifestations of organised crime’ and ‘exert significant influence over illicit commodity markets; particularly the illicit drug market. The Facts Sheet also reports that OMCGs ‘continue to engage in high impact violence, including the use of firearms.’

43.    I have taken into account Mr MCROY’s Statutory Declaration dated 21 January 2020 that he joined the Mongrel Mob around January 2018. He goes on to state ‘After my time in prison I felt isolated and wanted to connect with other men and have a different community. I saw posts online about the Club. I read online that the Club was a group of men and I reached out to them to connect.’ He states that he attended six events held by the Mongrel Mob, including fundraisers, family days, and barbecues at the clubhouse, and there was no discussion of criminal activity. Mr MCROY maintains that he was not aware that the Mongrel Mob was involved in criminal activity.

44.    Mr MCROY states that he first became aware of the Mongrel Mob's criminal activity through the media articles sent to him along with the Notice of intention to cancel his visa dated 23 October 2019. He reports being shocked at seeing these articles, stating ‘I am not a violent person, and I do not want to be associated with any organization like that.’ He is mindful that the Mongrel Mob has been registered as a criminal organisation by the Queensland Government though states this was not the case when he joined.

45.    I note Mr MCROY’s states that he left the Mongrel Mob around January 2019, when his wife first moved to Toowoomba, and has had no further contact with other Mongrel Mob members since that time. He states that his wife talked to him about leaving the gang, and he accepted that ‘it was something that I needed to leave behind for family life’. Mr MCROY further states ‘I am devastated that the decision which I regret so much to join the Mongrel Mob, may tear my family apart and impact my boys and family in the worst possible way.’

46.    I note from the statutory declaration of Mr MCROY’s wife, Ms Katryna Gardiner, that at the time they started communicating, he advised her he was connected to the Mongrel Mob and ‘explained that it was a fami1y friendly environment’ with family days and barbeques. Ms Gardiner states that as their relationship became more serious, she sought out more information about the Mongrel Mob and decided it was ‘not something I would accept for our family.’ She also confirms that Mr MCROY disassociated from that group around January 2019 when he had to hand over his patch and clothing to them.

47.    I have taken into account the letter from Mr MCROY’s mother, Ms Hera McRoy, and note that she told him she did not approve of the Mongrel Mob, and having grown up in New Zealand she was aware of ‘how bad they are’. She states that as Mr MCROY was raised in Australia he had no idea about the gang culture.

48.    Based on the evidence before me, I find Mr MCROY’s decision to join the Mongrel Mob after his release from prison raises concern with respect to Mr MCROY’s ability to reform his behaviour. I am sceptical of Mr MCROY’s claim that he believed the Mongrel Mob to be a family friendly social group at the time he became a member, especially taking into account that he has previously lived in New Zealand. I also have doubts regarding Mr MCROY’s claims that his involvement with the Mongrel Mob was limited to attending family events and barbeques, given that becoming a member generally requires participation in a patching ceremony. I note from the media article dated 7 May 2019, that these ceremonies are reported to involve ‘violent initiation processes and Nazi insignia’.

49.    While there is nothing to indicate Mr MCROY took part in any criminal activity as part of the Mongrel Mob, I consider his decision to join a notorious criminal gang, renowned for violence and identified by law enforcement as a significant criminal threat, to be of great concern. These concerns are further exacerbated by the fact that he joined this organisation a short time after being convicted of serious drug related offences, and after completing interventions to address his criminal behaviour. While I acknowledge Mr MCROY’s reports to no longer be a member of this gang, as a result of his past membership I hold strong reservations regarding his future prospects of maintaining a law abiding lifestyle.

[emphasis in original]

21    An understanding of what is stated there by the Minister is assisted by an understanding of the criminal conduct and sentencing that provided occasion for the grounding of satisfaction on the part of the Minister that Mr McRoy did not pass the character test as set out in s 501 of the Migration Act. That is detailed in the Minister’s reasons under the heading “Criminal Conduct”. Under that heading the Minister stated:

10.    In considering the nature and seriousness of Mr MCROY’s criminal offending I am of the view that drug trafficking offences are serious. With this in mind I note that on 28 June 2017, Mr MCROY was convicted in the Supreme Court of Queensland of trafficking in dangerous drugs and possessing dangerous drugs, for which he was sentenced to concurrent sentences of one year and 11 months imprisonment and released to parole on the same day.

11.    I have had regard to the circumstances of Mr MCROY’s offending in this matter as described in the sentencing transcript of that date. The Judge observed that Mr MCROY and his then partner had been trafficking drugs from a motel room over the period 2-11 January 2016. Evidence obtained through text messages, credit sheets, and other paraphernalia indicated they had been in possession of some 28 grams of methylamphetamine at the commencement of the period, and were in possession of approximately 20 grams at the time of arrest. Taking into account that they were ‘relatively heavy users’ themselves, the Judge concluded the extent of their sales to have been ‘not particularly large.’

12.    I note that the Judge took the view that the trafficking period was relatively brief, and was ‘not the picture of a sophisticated or successful trafficking operation, but the activities of two heavily addicted persons who were trying to self the methylamphetamine, of which they had a substantial amount in their possession ...’. The Judge noted that Mr MCROY and his co-offender’s agreement to operate a trafficking business had ‘sinister connotations’ with regard to ‘the reference that you both may have had at the time that you would be another Bonnie and Clyde’. His Honour also took into account ‘the denouncement that is required in relation to serious drug offences ...’

13.    I have taken into account that Mr MCROY was convicted of a number of other offences in the Magistrates Court of Queensland on 7 July 2017, and those offences were committed prior to the above mentioned convictions of 28 June 2017. I note that Mr MCROY was sentenced to 18 months’ probation on that date, for the following offences:

•    possessing dangerous drugs (three charges)

•    possess utensils or pipes etc that had been used

•    unlawful possession of motor vehicles, aircraft or vessels with intent to deprive

•    possess utensils or pipes etc for use

•    receiving tainted property

14.    I also note from the sentencing transcript of 7 July 2017, that Mr MCROY was convicted without further punishment in relation to offences of being ‘unregistered and uninsured’, some five counts of breach of bail condition, property suspected of being the proceeds of an offence under drugs misuse act, property suspected of having been used in connection with the commission of a drug offence, possess utensils or pipes etc that had been used, and obstruct police. Mr MCROY was also fined $550 and his driving licence disqualified for two years in respect to driving disqualified by a court order.

15.    Having regard to the sentencing transcript of 7 July 2017, l note that the Magistrate described Mr MCROY’s offending behaviour as ‘unbelievable’ and unsophisticated. I have also taken into account the Magistrate addressed Mr MCROY, stating ‘you are a person who had limited history ­ limited history right up until 2015 - and then it is like the dragon got you and propelled you into this unbelievable offending behaviour.’

16.    I note that Mr MCROY’s offending history dates back to 5 December 2006, at which time he was aged 21, when he was convicted and fined in relation to driving offences. I note he was subsequently convicted and fined in relation to drug possession offences and common assault in 2007. In 2015 he was also found guilty of possessing drug utensils and convicted of three failures to comply with judicial orders.

17.    I have taken into account Mr MCROY’s statement regarding the 2007 common assault conviction in his statutory declaration dated 21 January 2020. He states that he was not aware of this charge and did not receive a summons as he was ‘working in the mines’ at that time. He further states that he ‘would have considered contesting the charge’ had he been aware of these proceedings.

18.    In light of the Prosecution Notice - Summons to an Accused lodged on 23 February 2007 submitted by his representative, I accept that the common assault conviction was recorded without Mr MCROY being present. Nevertheless, I do not accept this is indicative that Mr MCROY is innocent of that offence and note that the Magistrates Court of Western Australia found it appropriate to convict him on the basis of the available evidence.

19.    I have considered Ms Aldersea’s submissions that Mr MCROY’s criminal convictions are not at ‘the more serious end of the spectrum’, partly because his conduct was in relation to his drug addiction. While I acknowledge Mr MCROY has not committed sexual offences or offences of serious violence, I nevertheless consider drug trafficking to be serious and do not accept that his own drug addiction reduces the seriousness of his conduct or his culpability.

20.    I find that the sentences Mr MCROY received are a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered that the court viewed Mr MCROY’s offending as serious.

21.    With this in mind, I have taken into consideration that on 28 June 2017, Mr MCROY was sentenced to concurrent sentences of imprisonment of one year and 11 months for his drug related offences. I also note from the sentencing transcript of that date, the Judge's comment that but for the fact Mr MCROY had spent some 17 months in prison prior to sentencing, he would have imposed a sentence of three years and six months. In this regard, I consider the custodial sentence imposed indicates that the Supreme Court of Queensland viewed Mr MCROY’s offences as serious.

22.    Taking into account the nature of the offending, the judicial observations and the sentences imposed, I find that Mr MCROY’s criminal conduct involving trafficking in dangerous drugs and possessing dangerous drugs are serious.

22    The accuracy of the Minister’s recitation in his reasons of the criminal conduct and sentencing was not gainsaid on behalf of Mr McRoy. Neither, unsurprisingly, was there any challenge to the offending conduct and related sentencing having provided permissible occasion for the Minister to be satisfied that Mr McRoy did not pass the character test. The unfairness which was said to be visited upon Mr McRoy by the material concerning the Mongrel Mob was said to be found in the extent to which the Minister had informed himself of or drew conclusions adverse to Mr McRoy in respect of the Mongrel Mob. It was put that Mr McRoy could not reasonably be expected to have responded to such adverse conclusions.

23    Particular attention in this regard was given to [48] and [49] of the Minister’s reasons. As to [48], and as the Minister had noted by reference to Ms Gardener’s statutory declaration, Mr McRoy had once had a Mongrel Mob patch and clothing, although she stated that these had been handed over to the gang in January 2019 upon Mr McRoy’s dissociating himself from that group. Mr McRoy had claimed, as [48] of the Minister’s reasons indicates that his involvement with the Mongrel Mob had been limited to “attending family events and barbeques”.

24    The Minister found this to sound an interrogative note, as I read [48], in that drawing on material which had been enclosed, patching ceremonies entailed “violent initiation processes and Nazi insignia”. The Minister does not in [48] make an affirmative finding that Mr McRoy had participated in a ceremony having those features. Rather, all that the Minister is doing, in my view, is voicing apprehension as to the candour of Mr McRoy’s asserted benign involvement.

25    The Minister was under no obligation uncritically to accept statements made by Mr McRoy or, for that matter, his wife as to the involvement. Further, as the Minister’s reasons at [33] highlight, and there was no point for the Minister, setting out the contents of [33] without this, there is an apparent incongruity between an asserted dissociation in January 2019 and an apparent involvement with the Mongrel Mob as late as July 2019. As to [49], notwithstanding the apprehended adversity evidenced by the response submission, in the end all the apparent involvement yielded was, as the Minister stated, strong reservations about Mr McRoy’s future prospects. In other words, as is expressly stated by the Minister, there was nothing to indicate that Mr McRoy took part in any criminal activity. Instead, all the Minister voiced was is a reservation based on an acknowledged membership of that gang as to risk. In so doing, the Minister was taking up a risk factor identified by Dr Bowden in the report enclosed with the submission of 21 January 2020. Thus the reasons evidence particular reactions to material which was before the Minister in the form of the bundle of media reports and to the submission and accompanying documents made on behalf of Mr McRoy.

26    Those reactions, in my view, are of the same kind as described by Mason J in Kioa v West, at 587, as not giving rise to any obligation on procedural fairness grounds further to revert to a person the subject of a decision. Thus, whilst I am adversely critical of the inadequacy of the notice of intention to cancel letter of 23 October 2019, I do not see in the overall circumstances any resultant, practical injustice. The denial of procedural fairness challenge must fail.

Unreasonableness

27    Undoubtedly there was much to be said in favour of not deporting Mr McRoy to New Zealand and it was said in a very carefully constructed, well supported submission made on Mr McRoy’s behalf by his then solicitors in their letter of 21 January 2020. Further, the subjects to be addressed had been identified with precision by the Minister’s department in the letter of 23 October 2019 by reference to the then prevailing Direction 79. That direction was one given by the Minister under s 499 of the Migration Act to those making decisions in relation to visa cancellation. Hardly surprisingly, the Minister made his decision by reference to that ministerial determination.

28    A helpful starting point, in my view, in relation to the unreasonableness challenge, is another judgment of Sir Anthony Mason, that given by his Honour in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24. In that case at 41, his Honour stated in respect of the jurisdictional error ground of unreasonableness that:

…both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance.

29    That particular statement has never been disapproved by the High Court. In substance, it formed the centrepiece of a submission on behalf of Mr McRoy that in terms of outcome this was an unreasonable decision.

30    The present is certainly, with respect, a hard decision but that does not necessarily make it an unreasonable one. It is a hard decision, with respect, in the sense that Mr McRoy, given the length of his association with Australia, all his life nearly, his marriage to an Australian, his fathering of an Australian, and his other close familial ties, he could not, as I have indicated, be regarded any longer as an immigrant. But that is just not the relevant touchstone these days. The Minister’s reasons make it patent that he was very well aware indeed of the length and depth of Mr McRoy’s ties with Australia and the fact that well over three decades had passed since Mr McRoy resided in New Zealand.

31    The ultimate conclusion reached by the Minister was one of a balancing of various competing factors. This is evident from the concluding paragraphs of his reasons, at [102] – [109]:

102.    I reasonably suspect that Mr MCROY 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 Mr MCROY’s visa, I gave primary consideration to the best interests of Mr MCROY’s son, Hemi McRoy, and his stepsons Nate Gabbert and Kawiti Tenana, and found that their best interests would be served by not cancelling the visa.

104.    Mr MCROY has committed a serious crime, that of trafficking in dangerous drugs and possessing dangerous drugs. Non-citizens who commit such offences and display a disregard for the laws of Australia should not generally expect to be permitted to remain in Australia.

105.    I find that the Australian community could be exposed to harm should Mr MCROY reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr MCROY. The Australian community should not tolerate any further risk of harm.

106.    I found the above consideration outweighed the countervailing considerations in Mr MCROY’s case, including the best interests of the child treated as a primary consideration. I have also considered the impediments to Mr MCROY returning to New Zealand, the length of time he has made a positive contribution to the Australian community and or the consequences of my decision for minor children and other family members, particularly his wife, Ms Katryna Gardiner.

107.    Noting that Mr MCROY has lived in Australia for most of his life, from a very young age, I have taken into account that Australia may afford a higher level of tolerance of criminal in relation to him than it would otherwise. However, I am cognisant that where harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel the visa.

108.    I find that Mr MCROY represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.

109.    Therefore, I decided to exercise my discretion to cancel Mr MCROY’s Class TY Subclass 444 Special Category (Temporary) visa under s501(2) of the Act.

[emphasis in original]

32    In Minister for Home Affairs v DUA16 (2020) 95 ALJR 54, at [26], the High Court emphasised the threshold for a conclusion as to unreasonableness is “unusually high” and that:

26    …the conclusion is drawn “from the facts and from the matters falling for consideration in the exercise of the statutory power”.

33    In Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (SZVFW), at [10], Kiefel CJ stated:

10    In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational.

[footnote references omitted]

34    In that same case at [82] in their joint judgment, Nettle and Gordon JJ stated:

82    Nor is the abuse of statutory power limited to a decision which may be described as “manifestly unreasonable”, or to what might be described as an irrational, if not bizarre, decision that is so unreasonable that no reasonable person could have arrived at it. A conclusion of legal unreasonableness may be outcome focused – where, for instance, there is no “evident and intelligible justification” for the decision. As Gageler J explained in Minister for Immigration and Citizenship v Li, “[r]eview by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’”.

[footnote references omitted]

35    As to Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, referred to by Kiefel CJ in the passage quoted from SZVFW, I had once conceived that the joint judgment in that case signalled that in Australia a view more akin to that which prevails in the United Kingdom in relation to proportionality with respect to the jurisdictional error ground of unreasonableness may have come to be favoured by the High Court. That conception did not, however, survive appeal in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Stretton). Stretton, I note, was recently cited by the High Court with express approval for its discussion of the content of the unreasonableness ground by the High Court in Minister for Immigration and Border Protection v Makasa (2021) 95 ALJR 117, at [40], footnote 18.

36    It is a necessary discipline in the exercise of judicial power to take heed of the hierarchy of courts and the doctrine of precedent. Were I to conclude that, in terms of the outcome, the Minister’s decision was unreasonable, that would be defiant of conclusions reached in Stretton with respect to the content of that jurisdictional error ground. That is something I must not do.

37    The process which led to the Minister concluding that Mr McRoy’s visa should be cancelled was neither irrational nor illogical, in my view. The risk of reoffending in relation to Mr McRoy was not identified as anything other than low but there was a history of offending and that history was supplemented, as Dr Bowden himself had noted, by an additional factor relevant to the risk of reoffending. That factor is, association with a particular gang. Dr Bowden also highlighted, as did the Minister in his reasons, many favourable factors in relation to Mr McRoy but when all is said and done, all that this case entailed was one of those hard decisions which in terms of the distribution of power under the Constitution is consigned to those such as Mr Dutton whom the Constitution terms the Queen’s Ministers of State for the Commonwealth.

38    Also in terms of that distribution of power, to set aside this decision on the basis of unreasonableness would be to violate observations made by Sir Gerard Brennan in Attorney-General (NSW) v Quin (1990) 170 CLR 1, at 35.

39    What follows from the foregoing is that none of the grounds of review as pleaded in the amended originating application is made out. Although they warranted scrutiny at trial and notwithstanding careful submissions made on behalf of Mr McRoy, which truly put the merits of his case at their highest, the application must be dismissed.

Associate:    

Dated:    2 July 2021