Federal Court of Australia

Jones v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 285

ORDERS

THE COURT ORDERS THAT:

1.    The application for review is dismissed.

2.    The applicant is to pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    As a result of the commission of five offences over a period of 21 years involving the indecent treatment of children, including the indecent treatment of children under the ages of 12 and of 16, on 27 May 2003 Mr Jones was sentenced to a term of imprisonment of 2½ years. He has not been convicted of any further offences. On 9 July 2018, the then Minister for Home Affairs cancelled his Australian citizenship as a result of which Mr Jones remained present in Australia pursuant to an Ex-Citizen Visa. On 24 November 2021, the Minister for Immigration cancelled that visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (the Act) and, by the present proceedings, Mr Jones seeks review of that decision.

The Minister’s decision

2    As a result of Mr Jones’s convictions and sentence of imprisonment it was not disputed that he did not pass the character test and that the discretion under s 501(2) was appropriately enlivened. It followed that the issue before the Minister was whether he ought to exercise that discretion to cancel Mr Jones’s visa. Whilst being mindful that he was not required to consider the issues raised in Direction 90 issued under s 499 of the Act, as the submissions delivered by Mr Jones’s solicitor in relation to the Minister’s decision adopted the issues there enumerated, the Minister was prepared to proceed on the basis that they provided an adequate framework for his deliberations.

3    In relation to the issue of the protection of the Australian community the Minister, in accordance with the Direction, accepted that sexual crimes are viewed very seriously by both the Australian Government and the Australian community. He recognised that the offences of which Mr Jones was convicted were committed over a 21 year period. The first group of offences occurred between 1980 and 1990 and involved sexual dealings with Mr Jones’s then wife’s niece. On two occasions the offences were committed while that victim was under the age of 16. The fifth offence occurred in 2001 against Mr Jones’s then wife’s great-niece who was 8 years old at the time. The Minister concluded that Mr Jones’s criminal conduct was “very serious” (MR [25]).

4    He then considered the risk which Mr Jones’s presence posed to the Australian community and, in doing so, concluded that any future offending by Mr Jones would potentially cause serious physical and psychological injury to members of that group. He then considered the circumstances of Mr Jones’s offending and his background and in doing so noted the evidence from a psychologist that Mr Jones’s chronic alcoholism had been a primary cause of his offending (MR [35]). Although he considered Mr Jones’s claims of remorse and rehabilitation, he was not convinced that Mr Jones’s feelings of regret were sufficient in themselves to ensure that he did not reoffend. Nevertheless, he took into account that Mr Jones had taken some steps towards addressing his substance abuse issues which thereby reduced the risk of his reoffending. Consideration was also given to Mr Jones’s completion of a sexual offender treatment program (MR [46] – [47]); that his behaviour in the controlled environment of prison was not evidence of his rehabilitation (MR [49]); that he had spent 16 years in the community since completing his prison sentence and that since leaving prison he had generally avoided children (MR [52]); that although he had taken steps to be resilient to alcohol abuse, concerns remained especially given his mental health issues relating to alcohol abuse (MR [55] – [57]); that his moderation of alcohol consumption is somewhat dependent upon his present relationship continuing without problems (MR [58]); that he was now 70 years old which suggested a reduced likelihood of sexual recidivism (MR [61]); and that there was a low risk of him committing further sexual offences (MR [64]). In relation to these issues the Minister concluded:

65.    I have found that the nature of Mr JONES’s conduct is very serious. I have further found that child sexual offences, and sexual offending generally, has the potential to cause physical and psychological injury to members of the Australian community. On balance I consider there to be a low likelihood that Mr JONES will reoffend. Nevertheless, I considered that, should Mr JONES engage in similar conduct again it may result in psychological and physical harm to members of the community. I have given this weight in favour of cancellation.

5    The Minister also considered that Mr Jones’s actions involved repeated offending against members of the same family over a long period of time and that this constituted family violence of a very serious nature (MR [66] – [76]). This weighed heavily in favour of cancellation of the visa.

6    In relation to the expectations of the Australian community the Minister took into account that cancellation of a visa may be appropriate simply because of the nature of the character concerns or offences in question (MR [81]). Mr Jones’s conduct involving family violence and the commission of serious crimes against children, including crimes of a sexual nature, raised serious character concerns such that the community expectation described above should apply.

7    He also considered the submissions made by Mr Jones’s solicitor in relation to the “extent of impediments if removed to the United Kingdom”. He took into account that Mr Jones was 70 years old and had health issues including depression, anxiety and heart disease, and that removal from Australia could have adverse impacts on his mental health and physical wellbeing (MR [90]); that Mr Jones would require more intensive care and support in the foreseeable future and that his health will deteriorate further if he were forced to relocate to the United Kingdom (MR [91]); that he would be heavily dependent upon the welfare system there for his physical and mental health and his poor capacity to assimilate will exacerbate his depressive symptomology (MR [92]); that those around Mr Jones, including his current partner, believes that he would attempt suicide if he were sent to the United Kingdom (MR [93] – [95]); that Mr Jones had no supportive family in the United Kingdom and his prospects of obtaining work there were extremely low; and that he has no accommodation available there, even in the short term. The Minister also took into account that while Mr Jones’s partner has indicated that she is likely to remain in Australia in the event of a cancellation decision, it was possible that she might change her mind and travel to the United Kingdom to be with him (MR [99]). Ultimately the Minister concluded on this topic:

100.    As a citizen of the United Kingdom, Mr JONES will have access to high quality health, social, welfare and economic assistance to assist him establish himself and maintain a living standard equivalent to that of other citizens of the United Kingdom. However, I have taken into account the statements of his partner and other family members, and acknowledge that Mr JONES’ mental health issues are likely to be exacerbated as a result of being separated from his partner and other family members, placing him at risk of suicide.

101.    I acknowledge that Mr JONES will face practical, financial and emotional hardship upon a return to the United Kingdom, due to his age, health, and lack of familial and social supports, and his mental health issues may be exacerbated to such a degree that he becomes suicidal. I find that this weighs in favour of a decision not to cancel his visa.

8    The Minister also considered Mr Jones’s links to the Australian community and the impact on his immediate family in Australia, should he be required to leave, and concluded that those persons would “experience emotional hardship” (MR [106]).

9    In conclusion he determined that Mr Jones represented a risk of harm to the Australian community which was “unacceptable” (MR [113]). He identified that there were a number of factors which weighed in favour of a decision not to cancel Mr Jones’s visa but, conversely, he gave significant weight to the very serious nature of the sexual crimes that had been committed and which constituted “family violence”. He further gave significant weight to the circumstance that the Australian community would expect that non-citizens who have engaged in family violence and sexual offences against children raise serious character concerns such that they should not continue to hold a visa (MR [116]). Further, he recognised that where there is risk that significant harm could be inflicted on the Australian community, even strong countervailing considerations may be insufficient to decide not to cancel the visa despite there being a higher tolerance to Mr Jones’s reoffending in this case. Ultimately, he concluded that the factors favouring non-cancellation were outweighed by the risk posed to the Australian community and its expectations with the result that the discretion was exercised to cancel Mr Jones’s visa.

Grounds of application

10    By an amended originating application, Mr Jones seeks judicial review of the Minister’s decision pursuant to s 476A of the Act. The following four grounds were advanced:

(1)    That the Minister’s decision was affected by legal unreasonableness. The substance of this ground was that the Minister, in concluding that Mr Jones presented a risk of reoffending, failed to take into account whether Mr Jones would encounter circumstances where he would have unsupervised access to children in a domestic environment. That was said to be an essential element of his past offending such that in assessing any future risk it was necessary to evaluate whether such circumstances would reoccur.

(2)    That the decision to cancel the visa was “plainly unjust” and therefore legally unreasonable. In substance, this ground was that in Mr Jones’s circumstances the Minister could not reasonably have reached the conclusion that his visa should be cancelled.

(3)    That the Minister failed to consider a claim and associated relevant evidence put forward as a reason not to cancel Mr Jones’s visa; namely Mr Jones’s partner’s assertion of hardship were he to be removed from Australia.

(4)    That the Minister failed to consider a ground clearly arising from his reasons, being whether Mr Jones may relapse into alcohol abuse if his relationship with his partner were to end because of his removal from Australia. This ground appears to involve an issue of the hardship Mr Jones would suffer were he to be returned to the United Kingdom. It was alleged that the Minister failed to consider that without his partner Mr Jones would relapse into alcohol abuse and this would inhibit him establishing himself in the United Kingdom.

Consideration

Ground 1 – legal unreasonableness

11    It was submitted that the Minister’s conclusion that Mr Jones was at risk of reoffending depended upon a cascading series of events being:

(a)    that he might encounter relationship difficulties with his current partner that would appear to mean the ending of the relationship;

(b)    which may result in him relapsing into alcohol abuse; and

(c)    which in turn may increase his risk of reoffending.

12    It was then submitted that the Minister did not take into account that an essential element of Mr Jones’s possible further offending was his having unsupervised access to children in a domestic setting. This was advanced on the basis that his past offending was against relatives (the niece and great-niece of his then partner) in a domestic situation and there was no suggestion that he had attempted to seek out children and abuse them and nor did he have a propensity to do so. So the submission went, the Minister’s failure to consider whether Mr Jones would, in the future, have unsupervised access to children in a domestic setting rendered his conclusion as to the risk of reoffending to be legally unreasonable.

The nature of legal unreasonableness

13    It was submitted that vitiating unreasonableness may arise in the context of the making of particular findings in reliance on which a discretion is subsequently exercised, rather than in respect of the exercise of power as a whole. In other words, that unreasonableness in reaching a conclusion about a particular matter will infect a subsequent exercise of power on which the finding is based. Mr McGlade for the Minister accepted that the doctrine of unreasonableness extended that far and that approach can be adopted for the purposes of the application. The effect of the Minister’s concession is that if the reasoning actually engaged in by the Minister in reaching the conclusion that Mr Jones remained at risk of reoffending met the standard of legal unreasonableness, the subsequent exercise of power was affected by a jurisdictional error, even though there existed an alternative logical pathway to the conclusion about that risk.

14    The principles of the evaluative analysis of whether an exercise of power is unreasonable were also not greatly in dispute. Nevertheless, they are worth repeating. In Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 451, 550 – 551 [10] – [11] (SZVFW) Kiefel CJ observed that a decision made in the exercise of a statutory power is legally unreasonable when it lacks an “evident and intelligible justification”: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 367 [76]: such as where it is one which no reasonable person could have made. However, her Honour observed that an inference of unreasonableness is not to be drawn only where the decision appears to be irrational. Her Honour concluded that the Wednesbury test of unreasonableness, being that no reasonable person could have made the decision in question, is not a test which can be applied in every case, but it serves to highlight the fact that the test is necessarily “stringent”. As her Honour pointed out, the courts will not lightly interfere with the exercise of a statutory discretion. Their Honours, Nettle and Gordon JJ (at 573 – 574 [82] – [85]) held that the abuse of statutory power constituting unreasonableness is not limited to those decisions which might be described as “manifestly unreasonable”, irrational, bizarre or a decision that no reasonable person could have arrived at. Further, a conclusion of unreasonableness may be outcome focussed in the sense that there is no “evident and intelligible justification” for a decision or exercise of power. Their Honours emphasised that it is not necessary for a court to identify a particular ground to found the conclusion of unreasonableness. It may proceed on the basis that the result is so unreasonable that it could not have been reached if proper reasoning had been applied. Their Honours emphasised that a conclusion of unreasonableness is invariably fact dependent and requires careful evaluation of the evidence. In that sense it depends upon the application of the relevant principles to the particular facts and circumstances of the instant case. Their Honours further observed that it would be rare to conclude that the exercise of a discretionary power was unreasonable where the reasons themselves demonstrated a justification for the exercise of the power.

15    The concept of unreasonableness was summarised by the Full Court of this Court in Singh v Minister for Home Affairs (2019) 267 FCR 200 (Singh), 216 [61] where the Court said:

The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power. Such a conclusion might be drawn, for example, if it:

(1)    is “illogical”, though an inference of unreasonableness will not be supported merely because a decision appears to be irrational;

(2)    “lacks an evident and intelligible justification”;

(3)    is plainly unjust, arbitrary, capricious or lacking in common-sense.

(Citations omitted).

16    There is no need in this case to consider the scope of legal unreasonableness, illogicality or irrationality any further. As the following discussion discloses, on any view of its scope it is not satisfied in this case.

Crystallising the issue

17    Before this Court it was submitted by Mr Karp that the Minister’s conclusion that Mr Jones posed a low risk of sexual recidivism was illogical, irrational or unreasonable because the Minister made no reference to the circumstances or occasions on which, if not deported, Mr Jones might find himself in the unsupervised presence of children of relatives in a domestic environment. It was submitted that it was necessary for the Minister to postulate and consider the precise environment in which that offending might take place and that it be substantially identical to those environments in which he had previously offended.

18    To some extent this submission proceeded upon the basis that the Minister had concluded that the risk of Mr Jones reoffending was limited to those circumstances. However, that basic foundation is not available for the simple reason that the Minister’s conclusion as to the risk of Mr Jones offending was not limited to offences against children. He had actually concluded that Mr Jones presented a low risk of “committing sexual offences” (MR [64]); that the offences committed by Mr Jones were “child sexual offences and sexual offences generally” (MR [65]) and that some of Mr Jones’s offences were committed against children (MR [49]). There is support in the material for the conclusion that the offences were not committed only against children. The report of the Australian Criminal Intelligence Commissioner of Mr Jones’s offending discloses that the first offences were committed in 1980 and 1981 against his niece and that the conviction was for the indecent treatment of a girl under the age of 16 (CB 22). It is noted that the circumstances of aggravation did not refer to a child under the age of 12 which, had the niece been of that age, one might have expected that it would have been reflected in the charges. It followed that the niece would have then been between the ages of 12 and 16. The second set of charges in relation to that niece were between 1987 and 1990. On that basis the victim would have been, at least, 18 on the first of those occasions and 21 on the latter. Those inferences were available and they tend to reflect the Minister’s implicit conclusion that some of the offences were not committed against children.

19    In these circumstances the Minister’s conclusion that Mr Jones represented a risk of reoffending was justifiably not confined to the commission of sexual offences against children. On that analysis, which should be accepted, the foundation for the alleged unreasonableness as to Mr Jones’s risk of reoffending does not exist, such that this ground necessarily fails.

20    This ground also fails because it erroneously assumes that the Minister should have only considered Mr Jones reoffending in a substantially identical manner to that in which he had committed the previous offences and, in particular, against children who were relatives and who were in his unsupervised company. No submission had been made to the Minister on behalf of Mr Jones that he was required to deal with the issue in that way and there is nothing in s 501(2) which suggests such a limitation should apply. Indeed, it is apt to observe that the submissions given to the Minister on behalf of the applicant in relation to the proposed cancellation did not specifically assert that any risk of reoffending was restricted to the specific type of prior offending, although they did identify the relevant type of offending was sexual offending (CB165). Those submissions relied on the report of a Professor Freeman whose opinion was directed to the possibility of Mr Jones committing sexual offences generally. In those circumstances it is not surprising that the Minister did not confine his consideration of this issue in the manner in which the applicant now submits he should have.

21    As was submitted by Mr McGlade for the Minister, even if the premise of the applicant’s submissions were accepted, no case was advanced to the Minister that Mr Jones was not at risk of reoffending because he would not have unsupervised access to children in a domestic environment in the future. Nor was there any evidence that the occasions on which Mr Jones might have that access in the future would be limited. In the postulated scenario of Mr Jones’s relationship with his partner failing and his resumption of alcohol abuse, there was no reason to think that an occasion would not arise in which he was in the unsupervised presence of children in a domestic setting or otherwise. It should not be forgotten that the issue involves conjecture as to what might occur in the future and all that the Minister is able to do is hypothesise as to what might occur. Here the Minister was apparently concerned with the possibility of Mr Jones engaging in future offences of a sexual nature, including as against children. In so doing he was entitled to, and probably could only, address the potential for that to occur at a relatively high level generality. To attempt to assess the possibility of the commission of specific future criminal conduct would require the Minister to either develop superhuman prescience or engage in what could only be wild speculation which would ultimately be meaningless. In order to meet the standard which it is now submitted the Minister must meet, he would be required to postulate the wide range of particular permutations of events which might arise if Mr Jones’s current relationship broke down, including how Mr Jones might behave as a result. It would then be necessary to postulate the infinite variety of circumstances in which Mr Jones might find himself in the unsupervised presence of children. Such circumstances could be myriad and it would necessarily involve substantive conjecture to identify them. It is not necessary for a decision-maker to descend to that level of granularity in order to ascertain whether the risk of reoffending exists. Such an analysis could only ever be required if the Minister, instead, sought to evaluate the probability of a person reoffending in a manner identical to past offending. That was not attempted in this case.

22    The essence of this ground of review is that the Minister did not consider whether Mr Jones might come into contact with children in the future and, consequently, the conclusion about his risk of reoffending is unreasonable. On that basis, Mr McGlade also submitted that there is nothing to suggest that the Minister did not turn his mind to the issue of whether Mr Jones might, in the future, be in unsupervised contact with children. If it is assumed that the Minister’s finding was that Mr Jones was a low risk of again engaging in the precise criminal acts in respect of which he had been convicted, given the extensive consideration apparent on the face of the Minister’s reasons it cannot be assumed that he did not turn his mind to the possibility that circumstances might arise in the future where that might occur. It is for the applicant to establish that a matter has not been taken into account in the exercise of a power and a conclusion to that effect will not be lightly made: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29, 45 [38]; Singh at 210 [37]. The Minister was not required to expose his entire reasoning process about the risk of Mr Jones reoffending nor make findings about any particular matter. He may well have considered the question of whether Mr Jones may come into unsupervised contact with children in the future but rejected that as a necessary element of his conclusion on the basis that to do so would involve speculation.

23    It is not necessary to consider this matter further. As has been identified above, the foundation for the submission that the Minister’s decision was unreasonable was not established. Ground 1 of the application necessarily fails.

Ground 2 – legal unreasonableness (result allegedly plainly unjust)

24    By this ground the applicant submitted that the result of Minister’s decision to cancel his visa was unjust in all the circumstances and, for that reason, was legally unreasonable. More precisely articulated the ground must be that the cancellation decision was vitiated because it was an exercise of power beyond that granted by s 501(2) of the Act in the sense that it was manifestly unjust, lacks an evident and intelligible justification, was capricious or lacking in common sense or wholly illogical. In considering whether any of those epithets were met, the converse of Wednesbury unreasonableness would provide one metric of validity in the sense that, if a reasonable decision-maker could have reached that conclusion, it is unlikely to be beyond the scope of power.

25    The applicant’s approach was to identify certain matters which were said to be so overwhelming, either individually or collectively, in favour of not cancelling Mr Jones’s visa that it was not rationally or logically possible to reach a contrary conclusion. Those matters are contained in paragraph (a) – (f) of Ground 2 in the amended originating application, although not all were advanced in the written and oral submissions. Nevertheless, they were said to be circumstances in favour of the applicant, the weight of which was greatly intensified by the lapse of time between the applicant’s offending and the termination of his period of imprisonment.

Delay

26    In support of this ground of review the applicant submitted that the lapse of the significant period of time between his offending or his release from prison and the Minister’s decision to cancel his visa, being in excess of 16 years, and the events which had occurred in that period had the necessary consequence that cancellation was legally unreasonable. It was submitted that the Minister could have revoked Mr Jones’s citizenship at any time after the Australian Citizenship Act 2007 (Cth) came into force on 1 July 2007, but that he did not do so until 9 July 2018. That delay, so it was said, was exacerbated by the Minister not moving to cancel Mr Jones’s Ex-Citizen Visa for a further two years and then waiting until 22 December 2021 to finally do so. By that time it was 20 years since Mr Jones had offended and 16 years since his release from prison. Mr Jones was by then 70 years of age and so beyond normal age of employment. He had developed severe health problems including heart disease and possible age-related cognitive decline, had re-established close contact with his family, and developed a close and loving relationship with a permanent resident of Australia. He had also curtailed his alcohol abuse and stabilised his life.

27    In support of the submission that the consequence of the delay rendered the Minister’s exercise of discretion to cancel Mr Jones’s visa unreasonable, Mr Karp relied upon the decision of the Full Court in Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 (Eden) which similarly concerned an exercise of power under s 501(2) of the Act. In that case, the primary judge had concluded that the Minister’s decision to cancel the respondent’s visa was unreasonable and, in doing so relied upon the fact that there had been a four year delay between the sentencing to a term of imprisonment and the decision to cancel the respondent’s visa. In dealing with the issue of delay the Court (Allsop CJ, Griffiths and Wigney JJ) accepted that it was relevant to assessing whether the outcome of the decision to cancel was unjust and therefore unreasonable: (at 175 [81]); however, they also observed that it was an underlying exacerbating factor of other considerations rather than being an integer of unfairness itself. As their Honours noted (at 175 – 176 [82] – [83]), the time that had elapsed since an offence was committed was relevant to an assessment of the applicant’s risk of reoffending and the Minister had taken it into account in concluding that the applicant, in that case, had a low risk of reoffending. The second way in which delay was relevant concerned the assessment of the hardship that would be suffered by the applicant and his family if the visa were cancelled. Since the date of the commission of the offence the applicant had dramatically changed and solidified his personal circumstances and, in that manner, the lapse of time impacted the evaluative process. However, their Honours concluded that the Minister had taken these consequences into account, albeit indirectly.

28    The observations of the Court in Eden are apposite to the present case. The lapse of time between the events of Mr Jones’s commission of the offences, his sentence to a term of imprisonment and his release on the one hand and, on the other, the making of the impugned decision is not of itself relevant to the question of unreasonableness. However, it necessarily impacts the evaluation of certain criteria in the exercise of the discretion. As was the case in Eden, here the Minister took into account the lapse of time since Mr Jones’s release from prison in relation to the issue of his risk of reoffending (MR [52]) and further took it into account in the context of assessing potential hardship by the referencing of the changed circumstances which had occurred since Mr Jones’s release (MR [89] – [111]). To that extent there is nothing in Eden which assists the applicant in the present case. Rather, it supports the decision in question as the Minister expressly directed attention to the effect of the consequences of the lapse of time since Mr Jones’s offending and the events which have occurred in that period.

29    It was, with respect, somewhat difficult to identify how the applicant sought to differentiate the statements of principle in Eden with the Minister’s approach in the present matter. In the course of the application Mr Karp submitted (ts 14):

Thus, in my submission, the substantial delay, combined with the reduced risk of reoffending in circumstances where he had not offended for 20 years, the aging of the applicant and the significant deterioration of his health such that it would be exceedingly difficult for him to re-settle in the UK – the end of his relationship with [the applicant’s partner], the significant detriment also to [the applicant’s partner] of his being removed and the Minister’s risk analysis – and, in my submission, your Honour, those circumstances make the decision to cancel his visa under 501(2) plainly unjust.

30    In substance, this is no more than saying that the period of time following the offending to the cancellation was so long that all of the factors should have weighed in Mr Jones’s favour so as to render the decision unjust and unreasonable. That should not be accepted and its substance was rejected in Eden. There is no period of limitation in the Act which might prevent the Minister taking action under s 501(2). It may be exercised at any time and there is nothing in the nature scope and purpose of the section or the Act itself which might give rise to an implication that the Minister cannot exercise the power if the events on which he relies occurred many years previously. For example, if the Minister becomes aware of a person who had committed war crimes many years in the past, it is not possible that s 501(2) could not be exercised merely because the person in question had resided in Australia for an extended period of time. Similarly, it may be that the Minister, through his Department, has been unaware of the historical circumstances which demonstrate that a non-citizen does not pass the character test. Again, it cannot be said that merely because the Minister did not know of the past offending until recently the power effectively cannot be exercised. In the present case there was no evidence as to when the Department became aware of the sentence imposed upon Mr Jones and his prior offending.

31    Similarly, the government may alter its policy as to when and in what circumstances consideration of the power in s 501(2) might be exercised. Indeed, that policy might alter with a concurrent alteration of the party in control of the government. There is nothing in the legislation to suggest that government policy in relation to s 501(2) should be stifled by reason of a mere lapse of time. That is not to deny the force of the observations in Eden that the lapse of time may have the consequence that factors in favour of not cancelling a visa will have greater weight, but here that issue was appreciated by the Minister and taken into consideration.

32    It may be that the applicant’s submission was advanced at a higher level of abstraction and on the basis that when one takes into account the several circumstances mentioned in the particulars to Ground 2, the decision was unreasonable. However, a conclusion that the exercise of discretionary power is legally unreasonable is one which must necessarily be rarely made. In SZVFW the High Court acknowledged that the scope of the principle is extremely confined and a high threshold must be passed “because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion”, Kiefel CJ at 551 [11]. Although the Wednesbury unreasonableness test has been identified as not a complete description of the scope of the doctrine, it is a useful metric in which to analyse particular circumstances. On that basis, the Court might ask itself whether the decision was one that no other reasonable Minister could have reached: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Stretton); in the sense that there was only one right conclusion he could have reached. Here, that threshold is not met. In particular, the Minister has provided a rational and intelligible justification for the decision. He justified it in a transparent way by reaching conclusions on the not insignificant number of issues raised by Mr Jones in his submissions. As Mr McGlade submitted, the applicant did not substantively cavil with the conclusion that Mr Jones represented a low risk of reoffending. That conclusion alone could have justified the making of the decision depending upon the relative weight a particular decision-maker might give it. Secondly, as the Minister explained, the Australian community, as a norm, expects governments not to allow persons who have engaged in acts of family violence and committed serious crimes against children, including crimes of a sexual nature, to remain in Australia. At [81] of his reasons he concluded that the community expectations are that the government would not allow Mr Jones to remain in Australia. That finding is not challenged and it too could have justified the decision. Indeed, the Minister (at MR [116]) accorded it significant weight towards the cancellation of the visa. Even in circumstances where the passing of time might be said to render the consequences of Mr Jones’s deportation to the United Kingdom more burdensome, it would be well within the scope of a reasonable decision-maker to give these two other factors determinative weight.

33    An issue arose between the parties as to whether the decision was of a political nature or not. In the circumstances it is not necessary to reach any conclusion as to that issue. Nevertheless, the alleged unreasonableness arose in relation to a substantive as opposed to a procedural matter and one which involved a matter of policy; namely putting the protection and expectations of the Australian public ahead of the personal interests and hardships which might be suffered by the individual concerned. The authorities clearly demonstrate that it is harder to infer the existence of legal unreasonableness in such circumstances because the power to either refuse to grant or cancel a visa is a substantive power and not procedural in nature: Stretton at [71]; Eden at [20].

34    The difficulty for the applicant in this case is that the offending was of a very serious nature and there remained a risk, albeit a low risk, of reoffending. That had the potential to cause physical and psychological injury to members of the Australian community. The Minister also reached the conclusion that the expectations of the Australian public is that persons who have committed the offences which Mr Jones had should not be entitled to retain their visa. The Minister was entitled to give such matters significant if not overwhelming weight in comparison to the personal hardships which might be suffered by Mr Jones. As Mr McGlade submitted, there have been a number of cases where the individual hardship of the applicant was of a more significant magnitude but that was insufficient to sustain a finding of unreasonableness in respect of the decision to cancel the visa: see Stretton. That is simply because of the breadth of the discretion involved and the nature of the matters which are relevant to its exercise. This proposition is succinctly articulated by the learned authors of Judicial Review of Administrative Action and Government Liability (7th edition, 2021) at [6.40]:

The variability of the standard for establishing unreasonableness is vividly illustrated by decisions allowing visa refusals and cancellations, and removal of non-citizens who have spent almost their entire lives in this country. There is simply no room for arguing that these decisions are so unreasonable in their outcome as to be beyond power, because it is clear that the Act empowers Ministers to make decisions in the government’s conception of the national interest, even though the impact on affected individuals may be “harsh, or even cruel”. (Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at 640 [41] (internal quotation marks and references omitted). See also SYLN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1986 at [71].) …

35    Those observations apply in the present case.

36    It follows that the Minister’s decision in this case was not legally unreasonable. It was within the Minister’s authority under s 501(2) and reached after a careful weighing of the competing considerations. There is no basis on which it might be described as not being a reasonable or rational exercise of power. Necessarily, Ground 2 of the application for review must also fail.

Ground 3 – Alleged failure to consider the applicant’s partner’s hardship

The applicant’s partner’s hardship

37    By this ground it was alleged that the Minister failed to consider the hardship suffered by Mr Jones’s partner if he were to be deported. It was submitted that the Minister did not give actual intellectual consideration to the material before him in relation to this issue. In particular, that he did not give sufficient consideration to the evidence of Mr Jones’s partner who said, “It would kill me if he were deported”. This was a reference to paragraph 34 of a statutory declaration made by Mr Jones’s partner which had been provided to the Minister in support of the submissions made.

The Minister’s reasons

38    Although the reasons of the Minister in relation to the issue of Mr Jones’s family ties was relatively brief, it is relevant that he referenced the statutory declaration of Mr Jones’s partner as well as the declarations of Mr Jones’s two sisters and his brother-in-law. It is also relevant that he particularly recorded the statement by Mr Jones’s partner as to the impact which the deportation of Mr Jones would have upon her. At [103] of the reasons he said:

103.    I note that [the applicant’s partner] has children and grandchildren in Australia and is therefore unlikely to relocate to the United Kingdom with Mr JONES. She states she cannot imagine losing Mr JONES from her life, and ‘It would kill me if he were deported’ Attachment M1.

39    It would appear that the applicant’s concern is the brevity by which the Minister expressed his conclusions on this issue where he accepted the evidence which was presented. At [106] he said:

106.    I have considered the impact of cancellation upon Mr JONES’ immediate family in Australia and find that those persons would experience emotional hardship.

40    In support of the submission that the Court should infer the Minister failed to give active intellectual consideration of the issue of the hardship which might be suffered by Mr Jones’s partner, reliance was placed on the observations in Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 361 – 364 [36] – [46]. The Court’s conclusions in that decision at [46] are worth repeating:

We are of the view that the meaning of the word “consider” set out in Tickner v Chapman and the requirement for a decision-maker to engage in an active intellectual process in giving consideration to the relevant matters or criteria should also be applied in determining grounds 1 and 2 of the present applications. As noted above, under s 501(3), the Minister has a discretion to cancel a visa if the Minister reasonably suspects that the person does not pass the character test and is satisfied that the cancellation is in the national interest. Otherwise, the Act does not expressly oblige the Minister to consider any particular thing or matter before deciding to exercise his powers under that provision. Nevertheless, as we have noted above, the Minister did not contest that he was under a general legal obligation to consider the merits of their cases before cancelling the visas of both Mr Taulahi and Mr Carrascalao. An express statutory obligation on a decision-maker to consider (or have regard to) something may well provide a “more precisely defined duty”, as Black CJ observed in Tickner v Chapman. In our view, however, the ordinary meaning of the word “consider” in this judicial review context requires the Minister to engage in an “active intellectual process” in assessing the merits of a case when contemplating the possible exercise of the power under s 501(3).

41    Mr Karp further made particular reference to the decision in Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 387 where Murphy J said at [74]:

In my view engaging in an active intellectual process directed to relevant evidence involves real consideration of it, not merely a recitation of parts of it without consideration of its significance or weight. Lawful decision-making by an administrative decision-maker must be based on the evidence and it requires genuine consideration of the evidence. Care must, however, be taken to ensure that the Court does not stray into merits review.

42    Further reference was made to the observations of Allsop CJ in Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 (Hands), 630 at [3] where the Chief Justice said:

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.

43    Mr Karp submitted, in somewhat explicit terms, that the Minister’s conclusion that Mr Jones’s partner would suffer “emotional hardship” were he to be deported, did not begin to engage with the evidence of the strength of their relationship and the effect on her were it to be brought to an end. He further submitted that the Minister did not analyse the partner’s evidence and nor did he identify whether he rejected or doubted it. It was further submitted that the Minister was required, in these circumstances, to draw conclusions as to the degree of emotional hardship or anguish that Mr Jones’s deportation would cause.

44    There are substantial difficulties with these submissions. The first concerns the evidence which demonstrates that the Minister did turn his mind to the issue of the impact which Mr Jones’s deportation might have on his current partner. He expressly referenced the declarations of the relatives who claimed they would be affected by an adverse decision, including that of Mr Jones’s partner. He then identified that the partner had said that she cannot imagine losing Mr Jones and then expressly cited that part of the statement in which she said that such a decision would “kill” her. The specific referencing of this particular part of the lengthy statement establishes that the Minister expressly addressed and considered the evidence relating to the impact of the cancellation of the visa on her. That conclusion is supported by the Minister’s earlier reference (MR [83]) to the submissions made on Mr Jones’s behalf, including that his removal from Australia would have a “devastating impact” on his partner.

45    There is no question that the Minister considered the issue raised by Mr Jones, being that his deportation would have a significant impact on his partner. His reference to the specific evidence on which the issue relies undermines the possibility that he did not give it genuine consideration. In circumstances where that relevant part of the partner’s statement was cited in the reasons as opposed to the remaining 34 paragraphs, it is very difficult to reach the conclusion that the specific issue was not weighed in the exercise of power. It is also relevant that the evidence recited by the Minister was the totality of the evidence on that topic. The statements by the partner in her statutory declaration (at [34]) were concise and consisted of no more than the Minister identified. It was not suggested that he failed to have regard to some additional or elaborating information. In such circumstances it is difficult to see what further the Minister might have done. He was not obliged to completely accept the partner’s assertion as to the depth of the emotional hardship which would be suffered although it is apparent that it was accepted to some degree and that this weighed in favour of not cancelling Mr Jones’s visa. On the other hand, it is not necessarily apparent that he did not fully accept the partner’s evidence. The reasons must be read “fairly and not in an unduly critical manner” and “in light of the content of the statutory obligation pursuant to which it was prepared”: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29, 45 [38]. They are not required to refer to every piece of evidence relied upon or exhibit every thought process engaged in whilst reaching conclusions on the issues in question. Read in this light the reasons in this case demonstrate that the Minister turned his mind to the issue raised, considered the relevant evidence, gave it active intellectual attention and reached a conclusion about it: He v Minister for Immigration and Border Protection (2017) 255 FCR 41, 51 [52]; Minister for Home Affairs v Omar (2019) 272 FCR 589, 605 [36(c)].

46    Nor was the Minister required to say more about the topic than he did. Compliance with the requirement in Hands (at [3]) to undertake an “honest confrontation of what is being done to people”, does not require literal acceptance of all statements made by persons close to the applicant. It must be kept in mind that it was not suggested that the partner’s statement that Mr Jones’s deportation would “kill” her was intended to be taken literally, but rather that she would suffer significant emotional hardship. Here the Minister confronted the essential evidence on this issue and reached a conclusion about it in the applicant’s favour. In truth, the complaint is one by which the applicant asks the Court to usurp the role given by the Parliament to the Minister and evaluate for itself the strength of the partner’s feelings and the weight which that should have in the evaluative process. That is beyond the scope of this Court’s authority.

47    Even if the above were incorrect, for the reasons which appear in relation to Ground 4, the Minister was not obliged to consider any particular matter in the exercise of his discretionary power so long as he had turned his mind to the merits of the case.

48    It follows that Ground 3 of the application for review also fails.

Ground 4 – alleged failure to consider potential lapse into alcoholism

49    By this claim Mr Jones claimed that the Minister had an obligation to consider that, if he was removed from Australia, he would relapse into alcoholism and this would adversely impact upon him. It is noted that this claim was made despite Mr Jones’s submissions to the Minister suggesting that he had succeeding in overcoming his alcohol abuse issues with the assistance of his family and his partner (CB 171). However, it was submitted that this ground arose because the Minister inferentially found that Mr Jones had abused alcohol most of his adult life, that his moderation was due to his relationship with his partner since 2018, and that ceasing alcohol abuse was contingent on that relationship continuing. So the submission went, the cancellation of Mr Jones’s visa would necessarily end the relationship with the consequence that the Minister was required to consider the adverse impact on the applicant of his relapsing into alcohol abuse.

50    This ground most acutely raised the question of what matters the Minister was required to consider when exercising the power under s 501(2) of the Act. It was submitted by Mr McGlade that s 501(2) conferred a general discretion on the Minister which included the entitlement to decide what matters should be considered. There is no doubt that the discretion is granted in general terms. It provides:

501        Refusal or cancellation of visa on character grounds

…

(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.

51    The structure of s 501(2) is similar to many others in the Act. It creates a discretion which is conditioned upon the satisfaction of a subjective jurisdictional fact. There is no suggestion that the discretion in the chapeau is fettered by the satisfaction of the jurisdictional facts so that the Minister would be obliged not to exercise the power merely if he was satisfied that the visa holder did not pass the character test. It is apparent that the words “may” and “must” in s 501 are used deliberately and carefully.

52    In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 (Nystrom), 606 [126] – [128] Heydon and Crennan JJ (with whom Gleeson CJ agreed) discussed the nature of the discretion in s 501(2) in the following manner:

[126]    The discretion to cancel a visa conferred upon the Minister under s 501(2) of the Act is unfettered in its terms. In Sean Investments Pty Ltd v MacKellar Deane J said:

“… where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards.”

[127]     In Minister for Immigration and Multicultural and Indigenous Affairs v Huynh the majority of the Full Federal Court held that, given the breadth of s 501, it is not possible to imply into the Act “some obligation on the Minister’s part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed”.

[128]    Parliament has left it to the Minister to decide the matters which are relevant to whether a person who fails the character test should be permitted to remain in Australia. Considerations relevant to the exercise of the power depend on the nature, scope and purpose of the power, understood in its context in the Act. As Ministerial Direction No 21 makes clear, the Minister considers that two of the factors relevant to the exercise of the discretion are related to the protection of the Australian community and the expectations of the community.

(Footnotes omitted).

53    The reference in Nystrom to Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 is important in the present context. There Kiefel and Bennett JJ (at 523 [73] – [74]) had observed:

[73]    The Act does not state what factors the Minister is bound to consider in determining whether or not to cancel a person’s visa. The nature of the Minister’s discretion under s 501 of the Act has been considered in a series of cases concerning the validity of Ministerial directions made under s 499 of the Act. In Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667 Dowsett J described s 501 as conferring an “unfettered discretion” upon the Minister (at [10]). His Honour went on to explain (at [24]):

Section 501 prescribes failure to satisfy the character test as a condition precedent to the exercise of the discretion to refuse or cancel. It does not create any presumption as to the way in which that discretion should be exercised.

This description of the discretion has been cited with approval in subsequent decisions, by Cooper J in Ruhl v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 401 and Stone J in Javillonar v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 311. And in Jahnke v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 268 Drummond J observed that although the discretion is not fettered by any express limitation, it must nevertheless be exercised by reference to considerations identified from the subject-matter, scope and purpose of the statute (at [17]).

54    Section 501(2) is one in respect of which the obligation to accord natural justice applies. That being so, the visa holder against whom the power might be exercised must be informed of that and be afforded an opportunity to make submissions about its exercise. Consequently, apart from considering the merits of the case as presented, the Minister is not obliged to turn attention to other matters. At most, the Minister is only required to accord natural justice by responding to “a substantial, clearly articulated argument relying upon established facts”: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, 1092 [24] per Gummow and Callinan JJ.

55    In circumstances where the Minister has an unfettered discretion to take into account whatever matters he considers relevant to the exercise of the discretion, there is no foundation for the submission that he erred by failing to take into account a matter which was not advanced to him and which, if it arose, did so only by reason of the findings which he had made. There is no suggestion that the Minister failed to address the merits of the matter as it appeared before him. He invited submissions and had regard to the matters raised in them when exercising his power. From a comparison between the submissions received and the matters which he considered, it is more than apparent that in the exercise of his discretion, he was prepared to consider most if not all of the grounds which were raised on Mr Jones’s behalf. He was not obliged to do so and he was entitled to identify those matters which he regarded as being pertinent to his deliberations. Less still was he obliged to consider any matter which was not raised on Mr Jones’s behalf, but which was only said to arise on the Minister’s own determinations.

56    It follows that Ground 4 of the application for review also fails.

57    The applicant placed significant reliance on AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 which was concerned with the matters which the Immigration Assessment Authority was required to consider when undertaking a review under Part 7AA of the Act. In that case, the Full Court held (at 509 [18]) that the Authority was required to consider claims that are the subject of substantial clearly articulated argument which rely upon established facts, or which clearly emerge from the materials. However, the “claims” to which the Court referred to were those raising an entitlement to the grant of a protection visa under s 36 of the Act. In that sense the “claim” consisted of all those factors which would entitle the applicant to a protection visa. In most circumstances where this issue arises the evidence as to fears of persecution and the possibility of the same already exists and, in the course of a determination, an additional reason for that fear of persecution arises. Because all of the other elements of a valid claim are present, when the new ground emerges an entirely new “claim” arises and it must be considered.

58    That is substantially different from the context of the present matter. Here, it is said that the Minister’s findings uncovered an additional factor which might be considered in the exercise of the discretion; namely that Mr Jones had a heightened likelihood of relapsing into alcohol abuse if he were to be returned to the United Kingdom and his partner did not return with him. However, were the Minister required to consider this factor it would follow that he would also be required to go through every finding made in relation to the applicant’s circumstances in Australia and turn his mind to what impact its absence would have on the applicant were they to be deported. There is a substantial difference between a decision-maker being required to consider a claim which of itself could be dispositive of the decision on the one hand and, on the other, a factor or issue which arises in the course of a determination which is merely one matter which might be weighed in the exercise of a discretion.

59    Further, it could not be said that any claim “clearly emerged” from the materials. Mr Karp submitted that the claim or issue was that, if Mr Jones’s relationship with his current partner ended on his being removed from Australia, he may descend into alcohol abuse and that this may cause an impediment to him establishing himself there. As Mr McGlade submitted, this involved much speculation. First, that Mr Jones’s partner would not relocate to the United Kingdom with him. As the Minister found, this was not certain. Second, that the ending of the relationship would cause him to engage in alcohol abuse. Again, whilst that was a possibility it also involves a degree of speculation. Mr Jones might enter into a new relationship or, given his current age and experiences to date, he may have developed a greater awareness of his difficulties with alcohol and avoid it or, at least, the excessive consumption of it. Given the steps in the analysis which have to be assumed in order for the issue or claim to emerge and in respect of which there was scant evidence as well as its inherent speculative nature, it cannot be said to have clearly emerged. Therefore, even if there were some obligation on the Minister to consider claims or issues which clearly emerged on his findings, here none did. Ground 4 would fail on this basis as well.

60    Further, it should be accepted that the applicant has not established that the issue was not considered by the Minister merely because it was not mentioned in the reasons. On any view it was not a central or pivotal issue, being one which, if it were considered it could be expected to be referenced in the reasons: cf Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, 448 [52] In those circumstances it may well be that the issue was considered by the Minister and contributed to his conclusion in paragraphs [100] and [101] of his reasons in which he considered the possibility of the applicant’s mental health decline in the absence of support from his family and partner.

61    Although no reference is made there to a relapse into alcohol abuse, the point in issue was the damaging impact on Mr Jones’s mental health were he to be required to relocate to the United Kingdom without his partner. The relapse into alcohol abuse would be a symptom or consequence of a declining mental health and, on that basis, it could be concluded that the Minister had considered the broader question in respect of which the point in issue was a factor such that it may well have been subsumed within it. It follows that the applicant has not established that the issue was not considered by the Minister in any event.

62    For similar reasons to the above, in the circumstances of the present case where substantial weight was placed on the serious nature of Mr Jones’s offending, it is far from apparent that if the Minister erred by failing to consider the point now raised there would have been a realistic possibility of there being a different outcome had it been taken into account.

63    It follows that Ground 4 must also fail.

Conclusion

64    It necessarily follows that no error has been shown to exist in relation to the Minster’s decision. The application for review must be dismissed with costs.

Associate:    

Dated:    29 March 2022