Federal Court of Australia

BAL22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 803

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    The applicant seeks judicial review of a decision by the respondent, the relevant Minister, on 12 January 2022 under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke a decision by a delegate of the Minister to cancel the applicant’s Class XA Subclass 866 Protection visa.

2    The delegate cancelled the applicant’s visa pursuant to s 501(3A) on the basis that the applicant “does not pass the character test” because he has a “substantial criminal record” in that he was sentenced to a term of imprisonment of 13 years.

Background

3    The applicant is a citizen of another country. He arrived in Australia as a young man nearly 15 years ago. He sought asylum shortly thereafter.

4    The applicant’s claims for protection have been accepted. It was on that basis that he was granted a protection visa. The applicant has been in immigration detention for more than three years. As will be seen, the applicant’s position in Australia is dire and his prospects of living a life outside of immigration detention are remote. One possibility of him avoiding permanent immigration detention is if the interest that the authorities in his home country have in him subsides over time and he is then able to return there reasonably safely. With that in mind, I have been astute to avoid revealing any possibly identifying information in these reasons for judgment. I will confine myself to what is strictly necessary.

5    A little more than a year after arriving in Australia, when the applicant was 22 years of age, he committed sexual offences against a 16-year-old girl. The applicant was apprehended shortly thereafter, and charged. Whilst in prison awaiting trial, he committed a further offence, being the offence of soliciting someone to murder the complainant.

6    In 2011, the applicant pleaded guilty to, and was convicted of, the following offences and he was sentenced as indicated:

(1)    attempted sexual intercourse without consent, a fixed term of five years imprisonment;

(2)    indecent assault, a fixed term of two years imprisonment; and

(3)    solicit to murder, a non-parole period of six years and balance of the term of five years imprisonment.

7    The overall result was that the applicant was sentenced to 13 years imprisonment with an eight year non-parole period.

8    Briefly stated, the offences occurred in the following circumstances.

9    On the evening in question in respect of the sexual offences, the applicant turned up at the victim’s home and asked to be let in to look at the roof cavity for the purposes of his work installing housing insulation. The victim refused him entry, but he opened the screen door and walked into the house. She showed him access to the roof, but on seeing her bedroom he went in. He grabbed the victim and forced himself on her in a sexual way for sexual gratification. It was that conduct that brought about the charges on the offences of attempted sexual intercourse without consent and indecent assault.

10    Whilst the applicant was in prison, the police received information that he wanted to have the victim murdered so that he could be released from gaol. An undercover operative engaged in conversation with the applicant in prison during which the applicant agreed that the victim would be killed for the sum of $10,000 which he would pay upon completion of the murder and his release from gaol. It was those events that led to the charge on the offence of solicit to murder.

11    In April 2017, a delegate of the Minister cancelled the applicant’s protection visa pursuant to s 501(3A) of the Act. The applicant made a number of submissions to the Minister in support of the revocation of the cancellation of his visa under s 501CA.

12    In August 2020, the Minister personally decided not to revoke the cancellation of the applicant’s visa. That decision was quashed by the Court (differently constituted) in October 2020 by consent on the basis that the Minister “failed to meaningfully engage with the applicant’s representations regarding non-refoulement”.

13    The applicant then made further submissions to the Minister. However, in January 2022, the Minister decided, again, not to revoke the cancellation of the applicant’s visa. This is the decision that the applicant seeks to quash in this proceeding.

The Minister’s decision and reasons

14    With reference to s 501CA(4) of the Act, the Minister was not satisfied that the applicant passed the character test – it is uncontroversial that he did not – and therefore had to consider whether there was “another reason why the original decision should be revoked” (s 501CA(4)(b)(ii)). In doing so, the Minister was guided by his Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA that was made under s 499 of the Act, although the Minister acknowledged that the Direction was not binding on him. With reference to the Direction, the Minister considered the following matters.

Protection of the Australian community

15    First, the Minister considered the protection of the Australian community. That involved considering the nature and seriousness of the applicant’s conduct to date and the risk to the Australian community should the applicant reoffend.

16    In respect of the nature and seriousness of the applicant’s conduct, the Minister considered the violent and sexual nature of the applicant’s offences. Noting that the applicant has no other convictions in Australia, the Minister nevertheless found that the applicant’s offending is “very serious” and that such offending is “abhorrent and contrary to community values”.

17    In respect of the risk to the Australian community, the Minister considered that any future offending of a similar nature would have the potential to cause physical and/or psychological injury or even death to a member of the Australian community. The Minister expressly considered factors that may assist to explain the applicant’s past conduct, as well as his more recent conduct, remorse and rehabilitation.

18    The Minister noted the sentencing judge’s remarks on sentence in which the judge accepted that the applicant’s prospects of rehabilitation were good, given his expressions of remorse, participation in courses in prison and preparedness to take part in specific programs for sexual offenders. The Minister noted the different programs that the applicant had participated in, his remorse and his acknowledgement of fault and the pain and suffering that he caused. The Minister also noted the applicant’s participation in educational and vocational courses whilst in prison, as well as his conduct in prison which included two prison charges of assault in 2009 and 2017 and one charge of “conceal for purpose of escape” in 2014.

19    The Minister noted that the applicant has been in immigration detention since May 2019, and that he has been generally compliant with no records of misconduct.

20    The Minister noted the substance of various representations made by the applicant in relation to the risk of him reoffending, including stating the following:

61.     [The applicant] further states that his risk is reduced because he will be on the Child Protection Register for the next 15 years under the supervision of the Australian Federal Police and will be subject to parole conditions until 15 October 2022. In addition to his remorse and rehabilitation, he states his physical disabilities significantly impede him from reoffending in the future Attachment BE, p 2.

…

70.     I have taken into account that [the applicant’s] health issues have affected his mobility and are thus likely to somewhat reduce the risk of him reoffending.

21    The “Attachment BE” referred to by the Minister is a four-page letter of representations by the applicant to the Minister in support of the revocation of the cancellation of his protection visa. The letter is dated 16 August 2021. It is at the centre of the applicant’s case on review. I will return to its contents.

22    The Minister noted that a report of a psychologist, Mr Randall, records the opinion that the applicant “would be at low risk of reoffending due to the insight he has gained through therapy which suggests that he is now committed to demonstrating that he is of good character”.

23    Ultimately, the Minister concluded the following with regard to the risk to the community:

73.     I have found that the nature of [the applicant’s] conduct is very serious and my finding is supported by the sentence imposed by the Court, the strict parole conditions, and his inclusion on the Child Protection Register. I have further found that whilst the above protective factors and his severe health issues are likely to lower the likelihood of reoffending, such reoffending cannot be completely ruled out and should [the applicant] reoffend in a similar manner involving violence or sexual offending against a minor, it could result in significant harm to a member of the Australian community.

74.     On balance I consider there to be a low likelihood that [the applicant] will reoffend. Nevertheless, I consider that should [the applicant] engage in similar conduct again, it may result in very serious psychological and/or physical harm to a member of the community, and even a low likelihood of such reoffending is of great concern. I have given this weight in favour of non-revocation.

Family violence conduct

24    Secondly, the Minister considered the applicant’s family violence conduct and concluded that there was no evidence that the applicant has engaged in conduct that constitutes family violence as defined in the Direction.

Best interests of minor children

25    Thirdly, the Minister considered the best interests of minor children and concluded that there was nothing to indicate that any child in Australia will be affected by a non-revocation decision in this case.

Expectations of the Australian community

26    Fourthly, the Minister considered the expectations of the Australian community. The Minister concluded that the applicant’s serious character concerns have the result that the government’s view of the expectation of the Australian community applies to the applicant, that view being that where a non-citizen has engaged in serious conduct in breach of the obligation to obey the law, or where there is an unacceptable risk that the person may do so, the government will not allow such a non-citizen to remain in Australia.

International non-refoulement obligations

27    Fifthly, the Minister considered international non-refoulement obligations. The Minister reviewed the history of the applicant’s claims for protection and ultimately accepted that having regard to the decision of the Refugee Review Tribunal, the applicant is a person to whom Australia has protection obligations under the Refugees Convention, and with regard to an International Treaties Obligations Assessment (ITOA) by the Department, the applicant is a person in respect of whom Australia has non-refoulement obligations. However, the Minister concluded that under s 197C(3) of the Act, the protection finding in favour of the applicant means that his removal to his receiving country is neither required nor authorised by s 198.

Extent of impediments if removed to receiving country

28    Sixthly, the Minister considered the extent of impediments if the applicant was removed to his receiving country. Under this topic, the Minister considered the applicant’s health, and in particular the sequelae of two injuries he suffered in prison which require ongoing medical treatment, in detail. These considerations by the Minister are relevant to the grounds of review. The Minister found as follows.

29    In 2012, the applicant began experiencing pain in his left shoulder and arm. Subsequent scans of his vertebra showed that it had overgrown and was compressing the nerves on his left shoulder. Surgery was recommended. The applicant was placed on a waiting list, but his condition worsened and, after lodging a complaint with the Ombudsman, he eventually had surgery in 2017. He was advised that he may have nerve damage due to the delay in surgery, and after the surgery he lost movement and strength in his left shoulder and arm and has muscle wastage.

30    Further scans showed that the nerve was still compressed. Spinal fusion surgery was undertaken in April 2020. The applicant says that his condition worsened after the surgery and scans in October 2020 indicated further compression. Records show that the applicant has muscle wastage, chronic pain and significant weakness in his left arm.

31    In 2018, the applicant felt a crack in his spine and sought medical attention. His condition worsened, with his legs becoming numb and him having difficulty walking. After three months, he was unable to pass urine or have a bowel movement. He had a ruptured disc in his lower spine and required surgery or he would lose lower body function. He was operated on immediately. Medical records confirm the applicant’s statements that he continues to have severe chronic pain, lower limb weakness due to nerve damage, difficulty walking and difficulty urinating.

32    The Minister noted the applicant’s statements in Attachment BE that the damage to his spine is so severe that most of the muscles in his legs are either completely numb or have weakened to the extent that he has trouble walking, the nerve damage in his neck has led to his left arm being totally disabled, the muscle in his left shoulder and arm has wasted away, and he has no sensation left in most of his arm. The applicant also stated that he is unable to lift 1 kg with his left arm and it dangles.

33    The Minister noted medical reports indicating that the applicant’s back/spinal pain has worsened and is not alleviated by prescribed medications, and that he will require further spinal surgery which could result in loss of mobility in his lower body. Also, it was noted that the applicant has ongoing issues with passing urine and having bowel movements, which requires, amongst other things, that he self-catheterise five to six times a day.

34    Ultimately, the Minister made the following findings with regard to the extent of impediments faced by the applicant if he is removed to his receiving country:

(1)    The applicant would not have access to health services, treatment and welfare services of the same high standard and as widely available as those services are to the applicant in Australia, which will impact his recovery and cause him pain and suffering.

(2)    The applicant has vocational skills that would enable him to find employment and he would be able to maintain basic living standards, although his criminal history and health issues may limit these opportunities.

(3)    The applicant will face practical and financial hardship due to limited medical and economic support, and emotional hardship, upon a return to his receiving country due to his lack of or limited family and social support.

(4)    However, due to the protection obligations owed the applicant, the applicant would not be removed to his receiving country and would thus not face the above impediments as they would not eventuate as a result of any decision not to revoke the cancellation of his visa.

Links to the Australian community

35    Seventhly, the Minister considered the applicant’s links to the Australian community. The Minister gave very limited weight to this consideration as the applicant offended some 15 months after arriving in Australia and has been in custody since then. Accordingly, he has only resided in the general Australian community for a short period of time.

Legal consequences of a non-revocation decision

36    Eighthly, the Minister considered the legal consequences of a non-revocation decision. The Minister acknowledged that the legal consequences of a decision not to revoke the cancellation of the applicant’s visa are that, as an unlawful non-citizen, he must continue to be detained in accordance with ss 189 and 196 of the Act, until removed from Australia or granted a visa. Further, by reason of the protection finding, s 198 will not require or authorise the applicant to be removed to his receiving country, except in certain limited circumstances which are not presently relevant (s 197C(3)). The Minister accepted that the prospects of finding another country willing to receive the applicant are poor, with the result that the applicant faces the prospect of immigration detention for an indefinite period.

37    The Minister accepted that indefinite detention is likely to significantly impact the applicant’s health conditions, and found that this weighs in favour of revocation of the cancellation of his visa.

Minister’s conclusion

38    Finally, after summarising the factors that weigh in favour of and against a decision to revoke the cancellation of the applicant’s visa, the Minister concluded as follows:

174.     On balance, I find that the factors that weigh against revocation of [the applicant’s] visa outweigh the factors in favour of revocation. Therefore, I am not satisfied that there is another reason why the decision to cancel [the applicant’s] Class XA Subclass 866 Protection visa should be revoked, as required by s 501CA(4)(b)(ii) of the Act.

The grounds of review

39    By his amended originating application, the applicant seeks to quash the Minister’s decision on the following grounds:

In considering whether to revoke the cancellation of the applicant’s visa under s 501CA(4) of the Migration Act 1958 (Cth), the respondent made a jurisdictional error in that the decision was irrational or legally unreasonable; alternatively the respondent failed to properly consider, or meaningfully engage with, an important representation, supported by evidence, made by the applicant.

40    The particulars to the grounds of review identify the submissions made by the applicant in Attachment BE, and the medical records submitted with them, and in particular the submission that the applicant’s physical disabilities would significantly impede him from re-offending in the future. They then state as follows:

e.     The respondent’s consideration of this submission amounted to a single sentence, where the respondent accepted that the applicant’s “health issues” are “likely to somewhat reduce the risk of him reoffending”: DR [70].

f.     The respondent considered that there was a “low” risk that the applicant would reoffend: DR [74].

g.     The respondent held “on balance” that the risk of harm to the Australian community, together with other factors, outweighed the factors in favour of revocation of the cancellation of the applicant’s visa: DR [174].

h.     In the premises, in light of the evidence and submissions of the applicant’s physical disabilities, it was irrational or legally unreasonable of the respondent to give weight to the applicant’s risk of reoffending as he did, because no reasonable decision-maker would give weight, or such disproportionate weight, to that possibility in light of the evidence put forward by the applicant of his injuries.

i.     Alternatively, the respondent’s consideration at DR[74] failed meaningfully to engage with the applicant’s detailed submission and evidence as to the extent of his physical disabilities and their effect on the applicant’s ability to reoffend and the likelihood that he would do so, and so the respondent constructively failed to exercise the revocation power under s 501CA(4).

j.     The jurisdictional errors were material.

The applicant’s submissions to the Minister

41    As mentioned, the applicant made a number of submissions to the Minister over a long period of time. The submissions covered a number of different matters and considerations relevant to the Minister’s decision. On the issues relevant to the grounds of review, the applicant’s only relevant submissions were those in Annexure BE. Those submissions can be summarised as follows.

42    Following two brief introductory paragraphs, the submissions are divided under three headings, and then followed by three concluding paragraphs. It is convenient to use the same headings.

Risk to the community

43    Under this heading, the applicant submitted to the Minister, with reference to Mr Randall’s report, that his risk of reoffending is “low”. The applicant referenced his acceptance of responsibility for his actions, his participation in rehabilitation programs and the risk assessments undertaken on him.

Likelihood of re-offending

44    The applicant submitted that there are a number of reasons why it should be considered that the likelihood of him reoffending is “low”. Those reasons include that he is remorseful and has taken full responsibility for his criminal behaviour, he has completed rehabilitation courses and continues to engage in such courses, he will be on the Child Protection Register for the next 15 years under the supervision of the AFP, and he has been assessed as low risk by Mr Randall.

45    As the final reason, the applicant stated as follows:

•    Fifthly, in addition to all of this I have sustained many serious and debilitating physical injuries while in prison that would significantly impede me from re-offending in the future.

(Emphasis added.)

Consequences of further detention on the applicant’s health

46    The applicant referenced “significant spinal and nerve damage as a result of a sport injury [he] sustained in prison”. His statements of fact and submissions about his injuries go over more than two pages. Relevantly, they include the following:

•    My bladder and bowel function is gone.

•    … most of the muscles in my legs are either completely numb or have weakened to the extent that I have trouble walking property.

•    The nerve damage in my neck has left my left arm totally disabled. … My arm just dangles down with the weight.

•    Both my feet, legs and left arm are weak and disabled to the extent that normal tasks such as walking or moving objects is a struggle…

•    Whatever concerns the Department has about the risk of me re-offending, in addition to all the reasons I have provided above as to why I believe the risk of my re-offending is low, I also believe that my physical disabilities significantly impede me from re-offending in the future.

•    Both of my legs have weakened to the extent that I am struggling to walk properly. Most of my leg muscles are numb and the rest are extremely painful. My lower back is always in pain and pain shoots down to my legs. Mostly to the right leg. Toes in my feet are clenching and I can hardly balance myself when walking.

•    I am limping and can barely walk.

(please see the attached medical records which reflect the full extent of my medical issues)

(Emphasis added.)

Concluding paragraphs

47    In the concluding paragraphs, the applicant reiterated some things he had already said, and said that his risk of re-offending is “very low”.

Failure to consider

48    In the recent decision of Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, the High Court revisited the quality of consideration, or engagement, required of a decision-maker in considering whether there is “another reason” to revoke a decision to cancel a visa because the visa holder fails to pass the character test pursuant to s 501CA(4)(b)(ii) of the Act. The plurality of Kiefel CJ, Keane, Gordon and Steward JJ re-phrased the verbal formulae in the following way (omitting the footnotes):

[24]     Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman [(1995) 57 FCR 451 at 495], the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

[25]     It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

[26]     Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision‑maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [(1986) 162 CLR 24 at 40], “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.

[27]     None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision‑maker’s reasons discloses that the decision‑maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

49    The relevant enquiries are accordingly whether (1) the decision-maker read, identified, understood and evaluated the relevant representations, and whether they brought their mind to bear upon the facts stated in the representations and the arguments or opinions put forward (Plaintiff M1/2021 at [24]), or (2) whether the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument (Plaintiff M1/2021 at [27]). It must nevertheless be recognised that the decision-maker is not required to make actual findings of fact as an adjudication of all material claims that are made: Plaintiff M1/2021 at [24].

50    The applicant accepts that the Minister considered his representation that the risk of him reoffending must be assessed in the light of his “many serious and debilitating physical injuries” that would “significantly impede” him from reoffending. The applicant’s complaint is that the Minister failed to give the representation, and the medical evidence submitted in support of it, sufficient or proper consideration. That is to say, the submission is not that the representation or the evidence was not read, identified or understood, but that it was inadequately evaluated.

51    The applicant points, in particular, to the Minister’s detailed treatment of the medical evidence of the applicant’s health with reference to the impediments that would be faced by him if he was removed to his receiving country, in contrast to the minimal treatment of that evidence with reference to the risk of him reoffending.

52    The applicant submits that the Minister’s consideration of the medical evidence in relation to the risk of him reoffending was “cursory and formulaic” in the manner identified in Hands v Minister for Immigration & Border Protection [2018] FCAFC 225; 267 FCR 628 at [3] per Allsop CJ, Markovic J agreeing, i.e.:

[W]here decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people.

53    The applicant submits that the Minister overlooked, but needed to consider in order to fairly deal with his representation, the question of how his specific injuries physically impact the likelihood of the type of re-offending that the Minister was considering. Referring to the Full Court’s comments in Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [39], the applicant submits that the Minister did not make any findings of fact about what the applicant was actually physically capable of doing after his injuries, which given the content and nature of the representation, may have been required.

54    In my assessment, the applicant’s criticism of the Minister’s reasons on this point is unfounded. The applicant’s submissions to the Minister on the conclusion to be drawn with regard to the risk of him reoffending with reference to his physical disabilities or limitations were only the following:

(1)    they “would significantly impede me from reoffending in the future” (see [45] above);

(2)    “the risk of my re-offending is low” and they “significantly impede me from reoffending in the future” (see [46] – fifth dot point – above); and

(3)    the risk of reoffending is “very low” (see [47] above).

55    Although the applicant’s submissions to the Minister also clearly included a detailed description of his injuries and disabilities, the applicant himself did not provide any explanation for how his specific injuries would physically or mechanically impede him from committing similar offences, including sexual offences, to those for which he was convicted. There is no substance to the complaint that the Minister did not make factual findings as to the specifics of the applicant’s physical limitations and how they might limit his ability to re-offend in the absence of submissions by the applicant directed specifically to those matters.

56    After referencing the applicant’s submissions in Annexure BE, the Minister concluded as follows: “I have taken into account that [the applicant’s] health issues have affected his mobility and are thus likely to somewhat reduce the risk of him reoffending.” (See [20] above.) The applicant’s complaint is in essence that the Minister’s conclusion that the applicant’s health issues are likely to “somewhat reduce” the risk of him reoffending is formulaic and does not engage with the evidence. In my assessment, the Minister’s statement is a conclusion that amounts to more than a “cursory and formulaic” consideration of the applicant’s representation and evidence. Further, it is to be observed that what was said in Hands about formulaic expression and “genuine consideration” was not with regard to the risk of reoffending but rather with regard to the “human consequences” of a non-revocation decision and what would thereby be “done” to the person. That is something qualitatively different. But more significantly, as explained above, the Minister was not required to make factual findings on each of the applicant’s alleged disabilities. It was open to the Minister to make an evaluative assessment in the way in which he did based on the information provided by the applicant; to find that what was done by the Minister was so inadequate as to amount to jurisdictional error would be to exceed the role of the court in judicial review and to trespass upon the Minister’s jurisdiction to deal with the merits of the applicant’s submissions.

Legal unreasonableness

57    The applicant submits that it was not rationally open to the Minister to conclude that the risk of the applicant reoffending was entitled to decisive weight.

58    It is common ground that the statutory power to consider whether or not to revoke the cancellation of a visa under s 501CA(4) of the Act is required to have been exercised reasonably. The applicable principles were recently summarised by Gordon J in Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15. At [31], her Honour said that:

Parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker. That conclusion will be open where a decision is “so unreasonable that no reasonable person could have arrived at it”, although it is by no means limited to such a case. It is concerned with both outcome and process.

(Original emphasis; footnotes omitted.)

59    Her Honour elaborated at [43] as follows:

As stated above, unreasonableness is concerned with both outcome and process. Whether what is being reviewed is an exercise of power or the formation of a state of satisfaction, a finding of unreasonableness is not limited to cases where the outcome is one which no reasonable decision-maker could have reached. As Crennan and Bell JJ relevantly said [in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [133] and [135]]: “the correct approach is to ask whether it was open to the [decision-maker] to engage in the process of reasoning in which it did engage” and a decision might be said to be illogical or irrational (or, it might be added, unreasonable) “if there is no logical connection between the evidence and the inferences or conclusions drawn”. Leaving aside the supposed distinction between the exercise of a power and the formation of a state of satisfaction, it is not in dispute that adverse credibility findings are susceptible to jurisdictional error on the basis of unreasonableness.

(Original emphasis; footnotes omitted.)

60    Importantly for present purposes, French CJ held in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 as follows (at [30]):

The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker.

61    The difficulty for the applicant’s argument is that the Minister’s finding of “somewhat reduce” is not all that far removed from “significantly impede”, which is what he contended for with respect to the impact of his disabilities on the risk of him reoffending. That finding also led to the ultimate conclusion that the risk of reoffending was “low”, which is the same as what the applicant submitted in Annexure BE in some places (see [43], [44] and, in particular, [46] above), although he also submitted that that risk is “very low” (see [47] above). The applicant can hardly contend that the Minister’s conclusion that the risk of reoffending is “low” is so outside the bounds of rationality or reasonableness that no rational or reasonable decision-maker could have reached that conclusion when the applicant himself submitted more than once that that is the correct conclusion to reach.

62    In effect, the applicant submits to the Court that on the medical evidence his risk of reoffending in a similar manner to the offences for which he was convicted is nil on account of his physical disabilities; he simply does not have the physical ability to overpower a victim in the way in which he did when he committed his previous sexual offences – and that for the Minister to have concluded otherwise was legally unreasonable. There are a number of reasons why that submission must fail.

63    First, as mentioned, it is not what the applicant submitted to the Minister.

64    Secondly, it is not evident that a person committing a physical assault of a sexual nature is necessarily prevented from doing so by impairments such as their need for assistance with walking or the lack of use of one arm. Sexual or indecent assault need not entail physically overpowering someone; it could involve simply groping someone as they pass, or as they tend to the assailant’s physical and health needs – a position the applicant is likely to be in given his need for care. Moreover, the offence of solicit to murder does not require any physical strength or exertion. Such an offence of the nature committed by the applicant, i.e., to eliminate a complainant or witness against the applicant, need not only follow only from a complaint of a crime that itself requires physical strength and mobility, as occurred in relation to the offences for which the applicant was convicted; it might follow a complaint of any serious offence.

65    Thirdly, that the applicant has no ability to assert or exert himself physically is not the only conclusion available on the evidence, also considering that the applicant is undergoing treatment and his physical abilities are not static. The Minister found that the applicant’s medical conditions were serious – he had back pain, difficulty walking and claimed that he could only lift a weight of 1kg with his left arm (see [32]-[33] above). However, the applicant’s disability is not total nor is he immobile – he claimed that if released into the community he would resume full time work. Given those findings, some risk of further offending – including further sexual offences, which, as noted above, do not require physically overpowering someone – was not outside “the range of possible lawful outcomes”: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [11] per Allsop CJ.

66    The applicant submits that the reasoning process of the Minister is similar to that identified by Markovic J in Kemp v Minister for Immigration & Border Protection [2018] FCA 1106, a case where the applicant suffered “similarly catastrophic medical impairments”. However, in that case, what was found to be illogical was that the Assistant Minister considered the applicant’s risk of reoffending with reference to his conduct at a time before he suffered severe physical and mental impairments as a result of various medical conditions, as explained as follows (at [44]):

The Assistant Minister’s reasoning proceeds by way of a false comparison in that the Assistant Minister seeks to rely on Mr Kemp’s conduct at a time when he did not have any known physical or mental impairments to make a finding about his prospects of re-offending in the future when he has both physical and mental impairments as a result of various medical conditions. Such an analysis or comparison would only be logical where it could be assumed that Mr Kemp’s circumstances were unchanged.

67    The process of reasoning of the Minister in the present case does not make that error, and in any event the many cases in this area turn on their own facts with the result that there is limited utility in seeking guidance from how the facts in another case were treated. As I have explained, it was in my assessment rationally open to the Minister to conclude that the applicant’s risk of reoffending by committing similar offences in the future is low, rather than very low or nil, and to then weigh that assessment in the balance with other factors in deciding whether there is “another reason” to revoke the cancellation decision.

Disposition

68    In the result, the application falls to be dismissed with costs.

Associate:

Dated:    12 July 2022