Federal Court of Australia

Fonoti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1553

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the applicant to extend the period in which she may file her originating application for review to 1 September 2021.

2.    The draft originating application for review that is annexure JKM01 to the affidavit of Joel Kent McComber affirmed on 31 August 2021 be treated as the originating application and be taken to have been filed on 1 September 2021.

3.    The originating application be dismissed.

4.    The applicant pay the first respondent’s costs of the application to be assessed 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

SC DERRINGTON J:

Introduction

1    Ms Fonoti is a citizen of New Zealand who is currently detained in the Villawood Immigration Detention Centre. She arrived in Australia at the age of eight and has spent all but about 24 months in Australia since her first arrival. She was last granted a Special Category (subclass 444) visa on arrival to Australia on 20 December 2018. That visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) which provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.

2    There is no dispute that Ms Fonoti, who has an extensive criminal record, did not pass the character test in s 501(1) of the Migration Act, because of the operation of subs (6)(a), on the basis of subs (7)(c).

3    Ms Fonoti seeks an extension of time to file an application for judicial review of the decision of the Administrative Appeals Tribunal made on 13 April 2021, and judicial review of that decision pursuant to the grounds stated in the draft originating application annexed to the affidavit of Joel Kent McComber (Aff-JKM - JKM01). In the Tribunal’s Reasons, it affirmed the decision made by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Cultural Affairs on 19 January 2021 not to revoke the mandatory cancellation of that visa.

4    For the reasons that follow, Ms Fonoti’s application for an extension of time to file her application for judicial review should be granted but the application for judicial review must be dismissed.

Background

5    Ms Fonoti arrived in Australia for the first time on 4 February 1997. She has travelled between Australia and New Zealand on five occasions since that date but has spent all but a cumulative period of approximately two years in Australia (Tribunal’s Reasons at [1]-[2]).

6    Ms Fonoti’s criminal history spans both jurisdictions. She has been convicted of 12 offences in New Zealand, including for assaults, trespass, failure to answer bail and breaching court release conditions (Tribunal’s Reasons at [4]). In Australia, her criminal history includes 49 offences for which 37 convictions have been recorded. The offending includes unauthorised dealing with shop goods, wilful destruction of property, assaults (including occasioning bodily harm to a person over 60), contraventions of domestic violence orders, contraventions of police directions or requirements, wilful damage of police property, obstructing police, public nuisance, failure to appear in accordance with a bail undertaking, stealing, drunk or disorderly in a licensed premises, wilful damage, and a variety of drug offences.

7    In September 2010, Ms Fonoti received a letter from the Department of Immigration and Citizenship notifying her that her visa may be liable for cancellation on character grounds. She was notified subsequently that a delegate of the Minister had decided not to cancel her visa but to give her a formal warning in the following terms:

Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered [emphasis in original].

(Tribunal’s Reasons at [71])

8    On 16 June 2017, Ms Fonoti’s visa was mandatorily cancelled. She decided to depart Australia whilst in immigration detention (on 13 September 2017) and during the period when her application for revocation of the mandatory cancellation of her visa was being considered. She was successful in that application and she was notified that her visa had been restored on 21 November 2017 (Tribunal’s Reasons at [73]). It is apparent from her movement records that she returned to Australia on 20 December 2018 (Tribunal’s Reasons at [1]).

9    Ms Fonoti continued to offend on her return to Australia and, whilst serving a full-time sentence of imprisonment, Ms Fonoti’s visa was again mandatorily cancelled and she was notified of that decision on the same day. Ms Fonoti requested that the mandatory cancellation be revoked but, on 19 January 2021, she was notified that a delegate had decided not to revoke the mandatory cancellation. Ms Fonoti lodged her application with the Tribunal on 27 January 2021 (Tribunal’s Reasons at [6]-[7]).

The application for leave to extend to time

10    Section 477A of the Migration Act stipulates that an application for judicial review of a decision of the Tribunal must be made within 35 days of the date of the decision but gives the Court a discretion to extend the period as it considers appropriate if two conditions are fulfilled. Those conditions are that:

(1)    an application for the order has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(2)    the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

11    The time-frame prescribed by s 477A expired on 18 May 2021.The application for an extension of time was filed 106 days out of time. It was supported by an affidavit affirmed by Ms Fonoti on 1 September 2021 (Aff-LDF) in which she deposed, at [4], to having been admitted to Liverpool Hospital for a period of 10 days after receiving the Tribunal’s decision. Ms Fonoti also deposed, at [5], to having attempted, on 18 May 2021, to file an application for review but having done so mistakenly in the Federal Circuit Court. Ms Fonoti deposed, at [7] to having sought legal advice on 30 July 2021 and, at [8], to having received that advice on 2 August 2021.

12    That advice was provided by Mr McComber, who indicated to Ms Fonoti that his preliminary view was that there were reasonably arguable grounds for jurisdictional error (Aff-JKM at [4]). Mr McComber has provided a satisfactory explanation of the relatively short delay between his receiving instructions from Ms Fonoti on 3 August 2021 and his filing of the draft originating application and supporting affidavits on 1 September 2021 (Aff-JKM at [4]-[6]).

13    The Minister, generously, does not oppose the extension of time despite the application having been made 106 days out of time. The Minister points to no relevant prejudice. Nevertheless, I must be satisfied that it is necessary in the interests of the administration of justice to make an order extending time.

14    As was observed by Katzmann J in LQZW v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 478 at [45]:

the phrase ‘in the interests of the administration of justice’ is broad, indeed ‘deliberately broad’: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [52]. On the other hand, as has been observed in a different context, ‘necessary’ is ‘a strong word’ and does not merely mean desirable: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [30]. The notion that an extension of time is necessary in the interests of the administration of justice implies that injustice will occur if an extension is not granted: cf. Gabriel v Minister for Immigration and Border Protection [2015] FCA 474 at [7] (Jessup J). As Jessup J observed in that case, the injustice would be depriving “an applicant with an apparently viable case from the opportunity to present, and to develop, that case in a court with jurisdiction to grant the appropriate remedy…”.

15    In the circumstances where Ms Fonoti has been in immigration detention throughout the relevant period, was hospitalised on the basis of her mental health condition for a period of 10 days immediately after receiving the Tribunal’s decision, attempted to file an application within time, albeit in the wrong court, before finally seeking legal advice on 30 July 2021 and where the Minister does not oppose the extension, I am satisfied that if Ms Fonoti has ‘an apparently viable case’, it would be in the interests of justice that time be extended to enable her to prosecute it.

16    In determining whether Ms Fonoti has an apparently viable case, the prospects of success of the proposed judicial review application are to be considered at a ‘reasonably impressionistic level’: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]; MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; 152 ALD 478 at [21] and [38] per Tracey, Perry and Charlesworth JJ.

17    The proposed grounds of review contend that the Tribunal’s decision:

1.    is affected by jurisdictional error because it misapprehended the matter required to be considered under para 14.4(1) of Direction 79, being the impact of a revocation decision on the victims of Ms Fonoti’s offending;

2.    is affected by jurisdictional error as it failed to genuinely consider a clearly articulated ground for revocation advanced by Ms Fonoti, being her mental health and substance abuse history;

3.    is vitiated by illogicality and/or irrationality, specifically in relation to its finding that Ms Fonoti’s previous election to be voluntarily removed from immigration detention in 2017 ‘tempered’ the strength of her social and family ties to Australia.

18    Given the lack of opposition by the Minister to the extension of time, and, in circumstances where both parties have filed detailed written submissions which, prima facie, raise an apparently viable case, leave to extend the period of time in which Ms Fonoti may file her originating application should be granted.

Relevant legislative provisions

19    Section 501CA of the Migration Act relevantly provides that:

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

 (3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

 (4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

20    In reviewing the Minister’s decision on its merits, the Tribunal stands in the shoes of the Minister. In carrying out its statutory task, the Tribunal is required to give ‘meaningful consideration’ (by engaging in an ‘active intellectual process’) to any significant and clearly expressed relevant representations made by the applicant: Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [34], [36]-[37]; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [46].

21    Section 499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under the Migration Act if the directions are about the performance of those functions or the exercise of those functions or powers. By s 499(2A), a person or body must comply with a direction made under s 499(1). On 20 December 2018, the then Minister made Direction 79, which came into force on 28 February 2019, and which applied to the decision in respect of Ms Fonoti’s visa refusal.

22    Paragraph 6.3 of Direction 79 provides as follows:

6.3    Principles

(1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2)    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3)    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4)    In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(5)    Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(6)    Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently, in Australia.

(7)    The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

23    Paragraph 7(1)(b) of Direction 79 stipulates that, informed by the principles in paragraph 6.3 above, a decision-maker must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

24    Paragraph 8(1) stipulates that decision-makers must take into account the primary and other considerations relevant to the individual case (which, in the case of a decision whether to revoke the mandatory cancellation of a visa, are in Part C). Paragraph 8(3) of Direction 79 provides that both primary and other considerations may weigh in favour of, or against, whether or not to grant a visa. Paragraph 8(4) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 8(5) provides that one or more primary considerations may outweigh other primary considerations.

25    Part C of Direction 79 sets out those considerations which a decision-maker must take into account in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa. These considerations are divided into ‘primary considerations’ and ‘other considerations’.

26    Paragraph 13(2) of Direction 79 provides that the following considerations are ‘primary considerations’:

(a)    Protection of the Australian community from criminal or other serious conduct;

(b)    The best interests of minor children in Australia; and

(c)    Expectations of the Australian community.

27    Paragraph 14 of Direction 79 provides a non-exhaustive list of ‘other considerations’ which must be taken into account by a decision-maker where relevant. These considerations include (but are not limited to): (a) international non-refoulement obligations; (b) strength, nature and duration of ties; (c) impact on Australian business interests; (d) impact on victims; and (e) extent of impediments if removed. The second consideration, that of the strength, nature and duration of ties, and the fourth consideration, that of impact on victims, are presently relevant, together with another ‘consideration’ being Ms Fonoti’s mental health and substance use history which Ms Fonoti contends was a matter that she had raised as a clearly articulated representation, independent of any other factor, with which the Tribunal was required to engage.

28    Paragraph 14.2 of Direction 79 provides:

14.2    Strength, nature and duration of ties

(1)    The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

(a)    How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i.    less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii.    more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

(b)    The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

29    Paragraph 14.4 of Direction 79 provides:

14.4    Impact on victims

(1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.

30    Paragraph 14.5 of Direction 79 provides:

14.5    Extent of impediments if removed

(1)    The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

(a)    The non-citizen’s age and health;

(b)    Whether there are substantial language or cultural barriers; and

(c)    Any social, medical and/or economic support available to them in that country.

31    The force and effect of Direction 79 made under s 499(1) of the Migration Act, albeit concerning its predecessor, Direction 65, was explained by the Full Court in Matthews v Minister for Home Affairs [2020] FCAFC 146. The Court said, at [45]:

…it is important to emphasise that the express purpose of Direction 65 is “to guide decision-makers performing functions or exercising powers under section 501 of the Act” (para 6.1(4), Direction 65; emphasis added). It remains the task of the Tribunal to determine what is and is not relevant in the circumstances of the individual case. Thus, as Perram J held by analogy in SZTMD [v Minister for Immigration and Border Protection [2015] FCA 150; 150 ALD 34] (in a passage also approved in [Minister for Home Affairs v] HSKJ [[2018] FCAFC 217; (2018) 266 FCR 591] at [44]):

20.    Although the applicant did not directly raise the issue, I would indicate that I accept Mr Hume’s submission that it was for the Tribunal to form an opinion as to what was relevant under cll 2 and 3 [of Ministerial Direction 56 made under s 499 of the Act] and what was not. The usual way of reading provisions such as these clauses is that they are construed as requiring the formation by the decision-maker of an opinion on the standard (here, relevance) imposed; that is to say, they are not generally construed as requiring the existence of a jurisdictional fact: see, for example, Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 466-468 (FC). Consequently, there is no occasion to consider whether this Court is of the opinion that there were relevant parts of the guidelines or country information. It is the Tribunal’s views on relevance which matter, not those of this Court.

Ground One

32    In her written submissions, Ms Fonoti contends that the Tribunal misapprehended what it was required to consider by para 14.4 of Direction 79 and, as a result, ‘weighed that consideration more adversely’ to her than it ought to have. It is asserted that the Tribunal double counted the historical impact of Ms Fonoti’s offending on her victims and failed to consider the future impact of that conduct as required by para 14.4.

33    Paragraph 14.4 is headed ‘Impact on victims’ and directs the decision-maker’s attention to the impact ‘on members of the Australian community including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims’. The Full Court has held recently that the word ‘not’ in para 14.4(1) of Direction 79 is ‘an error or surplusage that should be ignored so that persons bound by Direction 79 will approach their decisions consistently under cll 10.4, 12.3 and 14.4 in respect of the impact on the community, including victims, if the non-citizen were to hold a visa’: CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 at [23] per Rares, O’Callaghan, and Jackson JJ. This means that the Tribunal’s attention is directed to what the impact on victims and their families would be if the non-citizen is permitted to remain in Australia.

34    The gravamen of Ms Fonoti’s complaint is that the Tribunal had already considered the impact on her victims of her past offending when considering the severity of her crimes, as required by para 13.1.1(1)(a). The Tribunal referred to one victim impact statement when making findings about the ‘gratuitous and violent nature’ of the attack (Tribunal’s Reasons at [33]-[34]). The Tribunal also considered the victim impact statement when assessing the extent of violence committed upon a female, as required by para 13.1.1(1)(b), such as to militate a finding that the totality of the offending ‘must be viewed as very serious’ (Tribunal’s Reasons at [40]). The Tribunal referred further to the impact of Ms Fonoti’s past offending when considering, as required by para 13.1.1(1)(f), whether the cumulative effect of her repeat offending on the Australian community demonstrates the severity of that offending, including by causing physical and other injuries to multiple victims, damage and loss of property to other members of the Australian community, and the consumption of resources in the realms of law enforcement, the justice system, and the medical care system (Tribunal’s Reasons at [67]-[68]).

35    Further, the Tribunal had already dealt at some length with the impact on the broader Australian community, as it was required to do by para 13.1(2)(b) of Direction 79, and reached its conclusion that ‘the Australian community would conceivably suffer significant physical and/or financial harm including, quite conceivably to a catastrophic level’ if Ms Fonoti had her visa restored (Tribunal’s Reasons at [110]).

36    Having considered Primary Considerations A, B, and C, the Tribunal turned to consider the relevant ‘other considerations’ listed at para 14(1) of Direction 79. Those considerations included the strength, nature and duration of ties to Australia (para 14(1)(b)), the impact on Australian business interests (para 14(1)(c)), the impact on victims (para 14(1)(d)), and the extent of impediments if removed (para 14(1)(e)). These latter three considerations are plainly matters of prognostication and the Tribunal treated them as such. It observed that there was no evidence before the Tribunal that the cancellation of Ms Fonoti’s visa would impact on Australian business interests (Tribunal’s Reasons at [184]). The Tribunal also examined the circumstances that might impact upon Ms Fonoti were she to be returned to New Zealand (Tribunal’s Reasons at [189]-[199]).

37    In between those two matters, the Tribunal considered para 14(1)(d). In so doing, the Tribunal referred to the material containing ‘at least two victim statements that assist with an assessment of allocable weight pursuant to this Other Consideration (d)’ (emphasis added). Self-evidently it directed itself to the impact the restoration of Ms Fonoti’s visa would have on members of the Australian community including her victims and their families. It is true that, as described above, the Tribunal had already referred to two victim impact statements, but that was specifically in the context of drawing conclusions about the severity of the offending and the level of violence committed against women. By contrast, the Tribunal says explicitly that it also used the two victim impact statements to assist with weighing the ‘other considerations’ (Tribunal’s Reasons at [185]).

38    The Tribunal also considered a third victim impact statement to which it had not previously referred, being that of the fiancé of one of her victims. That statement recorded the fiancé’s views as to whether she (Ms Fonoti) belonged in society (Tribunal’s Reasons at [186]). Those views reflected the impact on at least that witness if Ms Fonoti’s visa were to be restored. In directing its attention specifically to para 14.4(1), the Tribunal considered the impact on the victims and their families by reference to information that, in this case, was available to the Tribunal. There is no suggestion that Ms Fonoti was not afforded natural justice. The Tribunal did not fall into the same error as identified in HVLC v Minister for Home Affairs [2019] FCAFC 204 at [15].

39    Further, as is made plain by the manner in which Ms Fonoti has framed the terms of Ground One, the complaint is primarily one as to the allocation of the weight placed by the Tribunal on this factor. It is for the Tribunal, not the Court, to determine what is and is not relevant in the circumstances of the individual case (Matthews at [45]), and the weighing of the various factors a Tribunal is required to consider is also a matter for the Tribunal, not the Court: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [33]; Pallas v Minister for Home Affairs [2019] FCAFC 149 at [44].

40    I do not accept the contention that there has been double counting in respect of the weight accorded to this consideration. No error can be discerned in the Tribunal’s consideration of the impact on victims required by para 14.4(1).

41    Ground One cannot succeed.

Ground Two

42    As to the second ground of review, it is contended that the Tribunal failed to genuinely consider Ms Fonoti’s clearly articulated claim that her mental health and substance use history was ‘another reason’ for revocation of the cancellation decision, independently of consideration of her risk of recidivism, the best interests of her minor children, and the impediments she would face on her removal to New Zealand. Under the statutory scheme mandated by s 501CA of the Migration Act, what is ‘another reason’ is a matter for the Minister: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [13]. As the High Court said, at [15], ‘If the representations made lack any substance altogether, then this of itself might justify a decision not to be satisfied that “another reason” exists to revoke the cancellation decision, without any need to make any findings of fact about the various claims made’.

43    The Tribunal dealt with Ms Fonoti’s mental health and substance use in some detail throughout its Reasons, particularly in its consideration of Ms Fonoti’s claims to be rehabilitating (Tribunal’s Reasons at [98]-[105]), in relation to the interests of her minor children (Tribunal’s Reasons at [133]-[135], and also in considering her claim about the extent of impediments she would likely face if returned to New Zealand (Tribunal’s Reasons at [194], [196]). As to the latter consideration, the Tribunal found that the extent of the impediments Ms Fonoti may face weighed moderately in favour of revocation.

44    The Tribunal’s consideration of Ms Fonoti’s representations were not, however, limited to those three factors. They were comprehensively referred to throughout the Tribunal’s Reasons. Significantly, the Tribunal referred to Ms Fonoti’s Statement of Facts, Issues and Contentions, which had been prepared by her legal representatives, in which Ms Fonoti suggested that her offending history should be viewed in the context of her mental health issues and lack of adequate treatment (Tribunal’s Reasons at [28]).

45    Ms Fonoti has not particularised any representation that she contends was overlooked by the Tribunal and which therefore should have been taken into account by it. No representation was put to the Minister that Ms Fonoti’s mental health and substance use issues required management in Australia rather than New Zealand. In oral submissions, Ms Fonoti’s solicitor conceded that there was no explicit representation in any of the material that Ms Fonoti’s mental health and substance use was an independent reason for revocation of the cancellation decision. As I said in DTCB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1098 at [30]:

A conclusion that a decision-maker has not engaged in an active intellectual process is not one to be made lightly and must be supported by clear evidence, bearing in mind that the judicial review applicant carries the onus of proof: Carrascalao at [48] … It is artificial to suppose that a decision-maker who has carefully set out the detail of the representations put to that decision maker has not engaged in an active intellectual consideration of those matters before arriving at a conclusory summary in relation to the relevant issue. It is a methodology adopted routinely by decision-makers to enable them to undertake the evaluative task with which they have been charged.

46    It is not apparent that the Tribunal’s decision has been affected by jurisdictional error; rather, this complaint also seems, impermissibly, to go primarily to weight: SZJSS at [33]; Pallas at [44].

47    Ground Two cannot succeed.

Ground Three

48    By her third ground of review, Ms Fonoti contended that the Tribunal’s state of non-satisfaction that there was not another reason for revocation was vitiated by illogicality and/or irrationality. It is contended that the Tribunal’s categorisation of Ms Fonoti’s election to voluntarily remove herself under s 198(1) on the last occasion on which she was detained in immigration detention in 2017, and its finding that she ‘gave not a second thought to her Australian-based family at that time’, which ‘tempered’ the strength of her social and familial ties to Australia, was illogical and/or irrational.

49    The question raised by this proposed ground is whether, putting aside the purported decision not to revoke, the Tribunal’s decision was infected with jurisdictional error because its state of satisfaction, being a precondition to the exercise of the power, was irrational, illogical and not based on findings or inferences supported by logical grounds, or if the decision to which the decision-maker came was simply not open on the evidence: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, per Crennan and Bell JJ at [135].

50    The ‘illogical’ path of reasoning was said to be a failure on behalf of the decision-maker to have regard to the statutory scheme which, in effect, forced Ms Fonoti to choose between indefinite immigration detention, because no time limit is imposed upon the Minister’s decision-making process, or requesting removal to New Zealand. No inference can be drawn that the Tribunal misunderstood the election with which Ms Fonoti was faced. The reasons of administrative decision-makers are not to be read with an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272.

51    For a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘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’: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [148]; Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210 at [52]; CGQ15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [60].

52    The Tribunal dealt with the strength, nature and duration of Ms Fonoti’s ties at [174]-[183] of the Tribunal’s Reasons. The Tribunal described the oral evidence and the witness statements in support of this factor. The Tribunal found that this consideration weighed moderately in favour of revocation (Tribunal’s Reasons at [183]), having found that the weight of this consideration was ‘tempered’ by the circumstance of her voluntary removal in 2017. The Tribunal cannot be criticised for this finding. It was no doubt harsh, given the choices that faced Ms Fonoti. But it is not one that no reasonable person could have arrived at in light of all the evidence that was before the Tribunal. In in any event, the challenge to this consideration as a whole amounts once again to no more than an impermissible challenge to the weight accorded to it by the Tribunal: SZJSS at [33]; Pallas at [44].

53    Ground Three cannot succeed.

Materiality

54    Even if the Tribunal erred as alleged in the grounds of review, those errors could not be material. Had the Tribunal considered in express language the impact of the revocation of the decision on the broader Australian community and Ms Fonoti’s victims when considering para 14.4(1) of Direction 79, or engaged more closely with Ms Fonoti’s representations as to her mental health and substance use, or engaged in illogical reasoning as alleged, Ms Fonoti cannot discharge the onus, that rests on her, that consideration of those matters could realistically have resulted in a different decision by the Tribunal: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [60] per Kiefel CJ, Gageler, Keane and Gleeson JJ.

55    The Tribunal considered:

    the violent nature of Ms Fonoti’s crimes (Tribunal’s Reasons at [31]-[34]);

    the commission of those crimes against women and children (Tribunal’s Reasons at [35]-[40]);

    the commission of those crimes against vulnerable members of the community and government officials (Tribunal’s Reasons at [41]-[47]);

    the length of custodial terms imposed (Tribunal’s Reasons at [47]-[51]);

    the frequency of the offending and the fact that it was serious offending from the outset (Tribunal’s Reasons at [52]-[60]);

    the cumulative effect of the offending including that there has been no deterrent effect from the sentences imposed, no developed or developing measure of respect for lawful authority, no measure of respect for the personal or property rights of others, that she is 33 years of age yet has an extensive offending history which commenced at any early age, the offending has caused physical damage and serious physical and other injuries to multiple victims (Tribunal’s Reasons at [61]-[68);

    that Ms Fonoti has reoffended since being warned in 2010 about the danger to her visa and since her visa was mandatorily cancelled, but then restored, in 2017 (Tribunal’s Reasons at [69]-[79]); and

    the risk of recidivism (Tribunal’s Reasons at [93]-[109]).

56    The Tribunal found (Tribunal’s Reasons at [110]-[111]):

110.    I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and have also had regard to sub-paragraphs 6.3(3) and (4) of the Principles appearing in the Direction. I find that (1) the nature of the Applicant’s offending conduct to date is very serious; (2) there is a convincing and unresolved likelihood that if the Applicant reoffended, the Australian community would conceivably suffer significant physical, psychological and/or financial harm including quite conceivably, to a catastrophic level; and (3) her risk of recidivism ranges from, at best, a risk equivalent to the risk she represented at the time of her most recent removal from the Australian community to, more likely, a moderate to high level of recidivist risk.

111.    In consideration of all the evidence and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs very heavily in favour of non-revocation.

57    The Tribunal concluded that Primary Consideration C, and consideration of the impact on victims (para 14(1)(d)) also weighed heavily in favour of non-revocation and that the totality of the weight in favour of revocation attributed to Primary Consideration B and to the strength, nature and duration of ties (para 14(1)(b)), and the extent of impediments if removed (para 14(1)(e)), did not outweigh the significant, combined and determinative weight attributed to Primary Considerations A, C and the impact on victims (Tribunal’s Reasons at [207]).

58    In light of these findings, it is difficult to see that there could realistically have been a different decision by the Tribunal.

Disposition

59    In light of these reasons, although leave should be granted to extend the period in which Ms Fonoti may file her originating application for review, that application should be dismissed with costs.

Associate:

Dated:    10 December 2021