Federal Court of Australia

Fetelika v Minister for Home Affairs [2023] FCA 95

ORDERS

THE COURT ORDERS THAT:

1.    The Respondent’s decision made 25 January 2021 not to revoke the cancellation of the Applicant’s visa be quashed.

2.    The Respondent is directed to re-determine the Applicant’s application for revocation of the cancellation of his visa according to law.

3.    The Respondent pay the Applicant’s costs of the application to be assessed on a lump sum basis by a Registrar if not agreed.

4.    The parties have liberty to apply.

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

REASONS FOR JUDGMENT

MURPHY J:

INTRODUCTION

1    The applicant, Frank Fetelika, is a 35 year old citizen of New Zealand. He arrived in Australia on 12 May 2010 and, being a New Zealand citizen, he was granted a Class TY Subclass 444 Special Category visa upon arrival. He has lived in Australia ever since.

2    On 4 October 2018, the applicant pleaded guilty and was duly convicted on three charges arising from an incident on 28 May 2017, namely; (a) aggravated break, enter and commit a serious indictable offence, namely intimidation; (b) take or detain in company with intent to obtain advantage, occasioning actual bodily harm; and (c) assault occasioning actual bodily harm. He was sentenced to an aggregate period of imprisonment of three years and six months.

3    As a result of those convictions and sentence the applicant’s visa was mandatorily cancelled by a delegate of the first respondent, the Minister for Home Affairs, on character grounds under s 501(3A) of the Migration Act 1958 (Cth) (the Act) (the visa cancellation decision). Subsequently, having invited and received representations from the applicant under s 501CA(3) of the Act, the Minister decided that he was not satisfied that there was “another reason” under s 501CA(4) to revoke the visa cancellation decision (the non-revocation decision).

4    By way of an amended originating application dated 30 March 2022 the applicant seeks judicial review of the non-revocation decision.

5    For the reasons I now turn to explain I consider it appropriate to order that the Minister’s decision be quashed, and to direct the Minister to re-determine the application for revocation of the visa cancellation decision according to law.

The legislative Framework

6    Under s 501(3A) of the Act the Minister must cancel a visa that has been granted to a person if satisfied that the person does not pass the “character test”, as defined in s 501(6) of the Act read together with s 501(7). Relevantly, a person does not pass the character test if the person has a “substantial criminal record” (s 501(6)(a)). A person has a substantial criminal record if, amongst other things, the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).

7    Under s 501CA(4) of the Act, the Minister may revoke a visa cancellation decision under s 501(3A) if the person makes representations in accordance with an invitation from the Minister to do so, and the Minister is satisfied either that:

(a)    the person passes the character test; or

(b)    there is another reason why the visa cancellation decision should be revoked.

the Factual and procedural BACKGROUND

8    I have drawn the following account from the Minister’s reasons for decision and from the materials in the application.

9    The applicant was born on 9 October 1987 in Auckland, New Zealand, to parents of Samoan descent. He first came to Australia in December 1999 at the age of 12, but returned to New Zealand shortly thereafter and for the next 10 years he travelled periodically between New Zealand and Australia. Since 12 May 2010 he has lived in Australia, only travelling back to New Zealand on a few occasions and for a short period on each occasion.

The applicant’s criminal offending

10    Prior to the events of 28 May 2017 the applicant’s history of criminal offending was limited, and not material to the visa cancellation. In 2012 he was convicted of driving whilst unlicensed and was fined $100, and in August 2017 he was convicted of driving while his license was suspended for non-payment of a fine and he was fined $300 and disqualified from driving for three months.

11    His criminal offending on 28 May 2017 was very serious, but it needs to be seen in context. The background to his offending and the circumstances of that night were set out in the sentencing remarks of Judge Bozic SC in the District Court of New South Wales on 4 October 2018, and summarised in the Minister’s reasons for decision (at [66]). The context includes the following.

12    In 2012 the applicant began a relationship with an Australian woman, Melissa Stanley (now Melissa Tome), and they lived together as a couple. She brought two daughters into the relationship and they had two sons together, one born in October 2013 and the other born in December 2015. The applicant established a close bond with both of the girls and was a father figure to them as well as to his two boys. At the time of the offending conduct the boys were aged three and 17 months respectively.

13    The applicant had been in steady employment in Australia since his arrival. Between 2014 and mid-2016 he was working as a fly-in/fly-out worker in the Queensland mines, but after his sons were born the regular absences from home became a source of dissatisfaction to him. He resigned from that employment and took up other employment locally.

14    Subsequently, Ms Stanley told the applicant that their relationship would not work with him being at home as much as he was. In mid-April 2017 Ms Stanley ended the relationship, and the applicant moved out of the home they shared and handed back his keys. The applicant slept at his place of employment for about two weeks as he was “too embarrassed” to tell his family that his relationship broken down. For the next five weeks the applicant continued to regularly visit the house to see the children and he stayed overnight about two nights a week. He hoped to be able to reconcile with Ms Stanley. As the applicant put it “[a]fter all, we had been together for a number of years and had children to our relationship, and I was committed to making things work.”

15    About four weeks after their split Ms Stanley commenced a relationship with another man, Fisiipeau Tome. About a week later, on 27 May 2017, the applicant went to the house to pick up some clothes that he had left there. Upon arrival he found his clothes packed in bags along with some work gear that did not belong to him, which he assumed belong to another man. He telephoned Ms Stanley to confront her with his suspicion and she admitted that she was in a relationship with Mr Tome. The applicant was familiar with Mr Tome, as Ms Stanley had been speaking to him on a dating site for 10-12 months, and had told the applicant she was doing so on behalf of another person. The applicant said that he was initially relieved to know the truth, however as the day went on, that relief turned to anger. He said that he was hurt and frustrated that Ms Stanley was able to move on so quickly while he still thought that they could work through things and that the separation was only temporary.

16    On the evening of 27 May the applicant went to a work function where he consumed five stubbies of beer. He was ruminating about their relationship and how things had turned out. He called Ms Stanley several times during the evening and they argued. After the function ended he was picked up by his brother, Peniamina Fetelika, and his nephew, Isaac Meehan. He told them that he wanted to go to Ms Stanley’s house to pick up his car which was parked there because he did not want her new partner to drive the children in his car.

17    That day Mr Tome was visiting Ms Stanley. It was intended that he stay at the house of a friend of Ms Stanley, but those arrangements did not go as planned so Ms Stanley arranged for him to stay at a hotel. That evening Ms Stanley and Mr Tome were at the hotel together for about five hours, talking and drinking. During that period the applicant telephoned Ms Stanley on a number of occasions and was arguing with her. At about 1:00 am on 28 May 2017 Ms Stanley and Mr Tome returned to her house to relieve the babysitter.

18    At about 1:20 am they were sitting on the front porch having a cigarette and playing with Ms Stanley’s dogs when the applicant arrived in Peniamina’s car, with Peniamina and Mr Meehan. The applicant got out of the vehicle and stood about seven feet in front of Mr Tome and said, “You’re not staying here with my kids here”. Notwithstanding that Mr Tome put up his hands and said, “Okay” the situation degenerated badly from there.

19    The applicant followed Ms Stanley into the house. She repeatedly screamed at him to get out but he refused to leave with Mr Tome there. Mr Tome is half Tongan and half Samoan and the applicant spoke to him in Samoan telling him that it was contrary to Samoan culture for him to be there. Ms Stanley said, correctly, “You can’t tell him what to do. This is my house and if I want him to stay here he can stay here”. The applicant demanded that Mr Tome leave but he refused to do so. The applicant grabbed Ms Stanley on the shirt near her neck and ripped it. She punched him on the left side of his face, and he then twisted her hand and pushed her. The applicant, Peniamina and Isaac then violently assaulted Mr Tome by pushing and punching him until he fell to the ground unconscious. They continued to assault him by punching him while he was unconscious. They eventually dragged Mr Tome into Peniamina’s car. In the course of doing so they punched Mr Tome again when he began to noticeably regain consciousness, and they again punched him into unconsciousness when at one point he got out of the car. When Ms Stanley attempted to pull Peniamina and Isaac away from Mr Tome, the applicant grabbed her right arm to pull her away and hit her on the left side of her face. The force of the blow caused her to fall and momentarily lose consciousness.

20    Peniamina then drove away with Mr Tome inside his car. The applicant went back into the house and got the keys to the vehicle that was parked in the driveway and he drove away too. Ms Stanley called triple zero and asked for urgent police assistance.

21    Subsequent police investigations revealed that at about 2:47 am Peniamina drove to the Beachcomber Hotel, where he said he tried to get Mr Tome a room at the hotel but there was no vacancy. At 3:25 am police stopped Peniamina’s car and observed him in the driver’s seat with Mr Tome sitting unconscious in the front passenger seat with injuries to his face and blood splattered on his jumper. He was wearing a seatbelt and slumped forward with his arms folded across his body.

22    Notwithstanding the violence of the assault, neither Mr Tome nor Ms Stanley suffered long-term physical injuries. Mr Tome was taken by ambulance to hospital for neurological observations and analgesia. X-rays revealed no broken bones but staff noticed multiple abrasions to his face, back and fingers. He was kept in hospital overnight and released the following day. Ms Stanley had a small laceration to the inside of her top left lip with some dried blood on the inside of her lips, mild swelling to her left cheekbone, two scratches to her neck, two scratches to her right upper chest, a ripped T-shirt, mild bruising to her left elbow and a scratch on her left arm, which she said was sustained in the incident. In her victim impact statement Ms Stanley said that while she had physically recovered, psychologically she was a “mess”; that she suffered from anxiety and depression, and feared going to do tasks such as shopping in case she ran into the applicant.

23    The applicant was arrested on a date which is not clear on the materials. He participated in an interview with police in which he admitted his offending conduct. He was charged and released on bail. He remained on bail until his conviction on 4 October 2018 when he was sentenced on three charges to an aggregate period of imprisonment of three years and six months.

The visa cancellation decision

24    As a result of the 4 October 2018 convictions and sentence, on 4 June 2019 a delegate of the Minister mandatorily cancelled the applicant’s visa under s 501(3A) of the Act on the basis that the applicant did not pass the “character test” in s 501(2) as he had a “substantial criminal record” as defined in s 501(6) read together with s 501(7)(c).

The non-revocation decision

25    In accordance with s 501CA(3)(b) of the Act the Department of Home Affairs invited the applicant to make representations to the Minister to seek revocation of the visa cancellation decision under s 501CA(4). On 17 June 2019 the applicant’s then solicitor wrote to the Department enclosing a Request for Revocation form seeking revocation of the visa cancellation decision.

26    On 1 July 2019 the Department wrote to the applicant acknowledging receipt of the Request for Revocation; advising that it had received further information, being the sentencing remarks of Judge Bozic SC; and inviting the applicant to comment on that further information. On 10 February 2020 the applicant’s solicitors sent the Department the applicant’s written submissions in support of revocation of the visa cancellation decision and bundle of documents including the applicant’s statement.

27    In his representations the applicant conceded that he did not pass the character test. Therefore the only basis under s 501CA(4) upon which the Minister could decide to revoke the visa cancellation decision was if the Minister was satisfied that there was “another reason” to do so.

28    On 25 January 2021 the then Minister, the Honourable Peter Dutton, decided that he was not satisfied that there is another reason to revoke the cancellation of the applicant’s visa, and thus the power to revoke the visa cancellation was not enlivened.

Other events

29    Upon 3 July 2020 the applicant was released from prison on parole, and was immediately placed into immigration detention, where he has remained.

the minister’s reasons

30    In addressing whether he was satisfied that there is another reason to revoke the visa cancellation decision the Minister said (at [11]-[12]) that he had considered the applicant’s representations and documents in support which articulated the reasons why the applicant said the Minister ought be so satisfied, including:

(a)    the best interests of his two children, aged four and seven years;

(b)    the best interests of his minor nieces and nephews;

(c)    his immediate family, including siblings that reside in Australia;

(d)    his residence of over 10 years in Australia;

(e)    his contribution to the community through his employment, sports and community activities;

(f)    his offending was out of character and his inability control his emotions after the breakdown of his relationship;

(g)    he is remorseful for his offending behaviour;

(h)    he has completed various programs and courses;

(i)    he will not reoffend;

(j)    he has ongoing support in the Australian community; and

(k)    the hardship of his removal on himself and his family.

31    The Minister addressed the question as to whether or not he was satisfied that there was another reason why the visa cancellation decision should be revoked under the following headings.

Best interests of minor children

32    Under this heading the Minister said that he considered the best interests of minor children affected by the decision (at [13]-[30]), referring to the applicant’s two sons, who at the time of the non-revocation decision were aged seven and four years old (at [16]-[25]), Ms Stanley’s two daughters (at [15]), and the applicant’s eight nieces and nephews who are minors (at [26]-[30]). The Minister accepted that it was in the best interests of all of the identified children that the visa cancellation decision be revoked. The applicant does not impugn the Minister’s reasoning in relation to this consideration.

Extent of impediments if removed

33    Under this heading the Minister said that he took into account the extent of impediments for the applicant if he were removed to New Zealand (at [31]-[42]). The Minister accepted that the applicant would face a number of serious impediments if removed to New Zealand, including because it would result in the applicant’s loss of connection with his immediate and extended family in Australia, and he would have no employment, no accommodation, and no friends in New Zealand (at [32]-[33]). He considered that the applicant’s separation from his children and immediate family members would cause the applicant “significant emotional and practical hardship and distress” and had the potential to cause him to suffer “social isolation and emotional hardship” (at [41]). The applicant does not impugn this part of the Minister’s reasons.

Strength, nature and duration of ties

34    Under this heading the Minister said that he had regard to the strength, nature and duration of the applicant’s ties to Australia (at [43]-[58]). The Minister said (at [53]) that the applicant had been gainfully employed from 2010 until 2018 in various roles including as a painter/decorator, hammer hands/labourer, machine operator, steel fixer and as a security guard in the Queensland mining industry. He noted (at [54]) that the applicant is heavily involved with his local sporting clubs and mentors junior players. The Minister found that the applicant had made a positive contribution to the Australian community over 10 years through his employment sporting activities and mentoring (at [44]).

35    The Minister accepted that, being Samoan, the family were very close and regularly hosted barbecues and reunions (at [46]-[47]), and that the applicant is particularly close to a sister and brother-in-law. He noted that the applicant is the youngest of three brothers and two sisters and that that it was important to the applicant to have his family close to him as his mother died at the age of seven or eight.

36    The Minister also said (at [52]) that he had taken into consideration various statements of support from former employers and community members, including:

(a)    Catherine Mills, a primary school teacher who had known the applicant for over two years after meeting him while on holidays. The Minister noted that Ms Mills said that; the applicant is an honest, peaceful and thoughtful man, who in her opinion, as a father, went to every measure to make his sons’ lives enjoyable;

(b)    Danny Fetelika, a technical services officer employed by Thermit Australia, the applicant’s employer for about 11 months in 2014-2015. The Minister noted that Mr Fetelika said that the applicant is a hard worker and is always willing to learn new things and was one of the most consistent and reliable workers at the company;

(c)    Jake Fuller of JF Painting and Decorating Pty Ltd, the applicant’s employer. The Minister noted that Mr Fuller said that he was disappointed by the applicant’s actions but also surprised by them as he has always known the applicant to be a sensible, calm and law-abiding citizen. Mr Fuller also said that the applicant was one of his most trustworthy senior supervisors/foremen on-site and he had always found him to respond in a calm manner with zero retaliation. Mr Fuller said that he had witnessed the applicant with his children on many occasions and that family has always come first for him;

(d)    Marie Aitoa of Toacon Pty Ltd, steel fixing contractors in New South Wales for whom the applicant worked in 2015 for about a year. The Minister noted that Ms Aitoa said that the applicant was always a well-mannered and very respectful employee and showed a lot of determination and hard work. Ms Aitoa said that she would not hesitate in re-employing the applicant in the future; and

(e)    Ms Stanley dated 24 June 2019 (who by then had changed her name to Ms Tome). The Minister noted that Ms Stanley said that the applicant is a responsible person in society and his offending was out of character. Ms Stanley also said that she will be there with his family to support him when he is released.

37    The Minister said that he had considered the effect of a non-revocation decision upon the applicant’s immediate family including his children in Australia and accepted that they would experience financial, practical and emotional hardship. He also accepted that the applicant’s extended family in Australia would experience emotional hardship (at [56]-[57]). Again, the applicant does not impugn this aspect of the Minister’s reasoning.

Impact on victims

38    Under this heading the Minister said (at [59]-[61]) that he had taken into consideration the fact that, on 24 June 2019, Ms Stanley had written a support letter in which she said that removing the applicant from Australia would have a negative impact on her and her children, including because it would cause her financial hardship. The Minister accepted that removing the applicant from Australia would cause financial and practical hardship for Ms Stanley (at [60]). The applicant does not impugn this aspect of the Minister’s reasoning.

Protection of the Australian community

39    Under this heading the Minister said (at [62]) that he gave consideration to the Australian government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens, noting in particular the applicant’s claim that he “does not pose an unacceptable risk of reoffending and is rehabilitated.” The Minister addressed this under two subheadings:

(a)    Criminal conduct; and

(b)    Risk to the Australian community

40    Under the “Criminal conduct” subheading the Minister set out the applicant’s history of criminal offending (at [63]-[69]). I earlier summarised that history and I need not do so again. The Minister found that the violent offending conduct of the applicant, in a domestic setting and directed against a woman, was “very serious” (at [69]). The applicant does not impugn the Minister’s reasoning in this regard.

41    Under the “Risk to the Australian community” subheading the Minister said that he considered the likelihood of the applicant reoffending, and the harm to members of the Australian community should he do so (at [70]-[107]).

42    The extent of the applicant’s rehabilitation and the related risk of his reoffending is central in the application and this part of the Minister’s reasons and therefore requires careful attention.

43    The Minister said that he gave consideration to whether the applicant posed a risk to the Australian community through reoffending by having regard to any mitigating or causal factors in his offending and by giving consideration to the steps the applicant has undertaken to reform and address his behaviour (at [70]). He said that he had also taken into account the applicant’s overall conduct in the custodial and non-custodial environment, and his insight into the offending

44    The Minister further said that he had considered that the applicant said that his offending was “completely out of character”, that he was very emotional at the time after finding out his partner was “cheating” on him, that he was losing everything he had built in their relationship, and that he did not know how to control his emotions and as a result he offended (at [71]).

45    The Minister noted (at [72]) that the applicant had told the forensic psychologist retained on his behalf, Ms Caroline Hare, that his fly-in/fly-out employment in the mines became a source of dissatisfaction to him after his sons were born and he resigned. The applicant said that soon after that Ms Stanley had informed him that their relationship would not work with him being at home and the applicant was caught “off guard”. They began to argue often and Ms Stanley terminated their relationship. The offending occurred within a few weeks of their relationship ending. At the time the applicant was still hopeful they would reconcile. The Minister noted (at [73]) that the applicant slept in his place of employment for two weeks after the breakup as he was “too embarrassed” to tell his family that his relationship had broken down. After the relationship breakdown, the applicant continued to visit the house regularly and stayed at the house a few nights a week as he had a hope of reconciling. He was committed to making the relationship work.

46    At [74]-[75], the Minister noted the applicant’s account that on the day of the offending conduct he had found items belonging to another man at Ms Stanley’s house, he had confronted Ms Stanley and she had admitted to a relationship with Mr Tome. The applicant was relieved that Ms Stanley had told with the truth but as the day went on his relief turned to anger and he was hurt and frustrated. The Minister also noted that the applicant had drunk five stubbies of beer on the night of the offending. At [77], the Minister noted that the applicant said that he was familiar with Mr Tome, as Ms Stanley had been speaking to him, on behalf of someone else, via a dating site for 10-12 months.

47    The Minister referred to the sentencing remarks of Judge Bozic SC as follows (at [79]-[80]):

[79]    His Honour also noted Ms Hare’s report that upon [Mr Fetelika] attending the home there was an argument and Mr Fetelika said things happened which caused him to become “really angry” after which things got out of control and he said he “lost control emotionally”. When asked to reflect on what caused him to lose his temper Mr Fetelika had identified a strong theme of perceiving himself to be disrespected by both [Ms Stanley] and Mr Tome, that [Ms Stanley] had disrespected him by being in contact with Mr Tome during their relationship and that “she has no respect for herself to allow the kids to wake up to a stranger.” Mr Fetelika also told Ms Hare that Mr Tome was disrespectful due to their sharing similar heritage and not valuing the applicant’s relationship with [Ms Stanley]. Having said that, Mr Fetelika offered remorse for the emotional impact of his actions on all four children.

[80]    His Honour also referred to Ms Hare’s report, [in] which Ms Hare stated:

“The current offences occurred in the weeks immediately after Mr Fetilika’s partner had ended their relationship and in my opinion there is a significance in understanding why he acted as he did. Further, it seems that on the date of the offences he had just become aware that his ex-partner was dating the other victim and I hypothesise that Mr Fetelika was experiencing strong feelings of rejection, anger and abandonment. He perceived both victims as disrespecting him (for different reasons) and this triggered a loss of emotional control as he realised the futility of his hopes of reconciling with his ex-partner and maintaining their family unit intact. This was likely associated with deep personal shame, he had not told even his closest family members at the relationship had ended. Although Mr Fetelika was not heavily intoxicated at the time of the offences the five standard drinks he had consumed would no doubt have detrimentally impacted his self-control.”

48    At [81] the Minister noted Ms Stanley’s statement that the applicant “is not a violent man and was emotionally driven when he made the worst mistake of his life”. She said that the applicant was in a very vulnerable mental state at the time of the offence as he was losing everything around him and he was not thinking clearly.

49    Importantly, (at [82]) the Minister accepted that the factors “set out above” may have contributed to the applicant’s offending. In referring to the factors “set out above” the Minister can only have meant the circumstances leading up to the applicant’s offending, Ms Hare’s opinions (as accepted by Judge Bozic SC) as to why the applicant had offended as he had, and Ms Stanley’s view that the applicant was “emotionally driven” and in a “very vulnerable mental state” at the time of his offending conduct.

50    The Minister then turned (at [83]-[100]) to set out a series of matters going to the risk of the applicant reoffending. The Minister:

(a)    noted that the applicant admitted that his behaviour was wrong and stated that he is remorseful for his actions and the trauma he caused the victims (at [83]), and that the applicant accepted that his behaviour was unacceptable and unjustified and behaviour of which he is “wholly regretful and ashamed of” (at [84]);

(b)    acknowledged that the applicant accepted full responsibility for his unacceptable and unjustified actions and that he is remorseful (at [85]);

(c)    acknowledged that the applicant said that while he was in prison he had been assessed as a “low risk” of reoffending, which meant that he was ineligible to complete some rehabilitation programs (at [86]);

(d)    took into consideration that, while in prison, the applicant engaged with case management services, the chaplaincy and Red Cross which had provided him with support, learning and techniques to live “a pro sound life”. The Minister noted that the applicant provided evidence that he had completed a variety of courses including courses concerned with basic emergency support skills, community health and first-aid, alcohol and drugs emergencies, behaviours and social change, and General Construction induction training, and a traineeship Certificate II in Construction (at [87]-[89]);

(e)    noted that the applicant had engaged in online anger management courses since entering immigration detention (at [90]);

(f)    accepted that the applicant had realised that he needs to ask for help from his friends, family and professionals rather than bottling things up; and that he had converted to his faith while in prison and had become calmer and more at peace (at [91]);

(g)    noted that the applicant had ceased drinking alcohol altogether approximately one month after the offence, and that he denied any illicit drug use or history of problem gambling (at [92]);

(h)    referred to the character references that were before the Minister, noting that they spoke in “common and unqualified terms” about how the offending conduct was “totally out of character” for the applicant (at [93]);

(i)    noted that the applicant said that the risk of him reoffending is “very low” because if faced with the same scenario he had learned tools and techniques that would help him control his thoughts and emotions so that he would not use violence again (at [94]);

(j)    took into consideration Ms Hare’s opinion that the applicant’s PAI score did not reveal any marked elevations that would indicate the presence of clinical psychopathology, and overall her view was that the applicant is likely a relatively psychologically well-adjusted individual, who scored in the average range in relation to assertiveness, friendliness and concern for others. In Ms Hare’s opinion the applicant’s temper was seemingly well-controlled and within the normal range (at [95]);

(k)    acknowledged that the applicant pleaded guilty to the three charges laid against him (at [96]); and acknowledged that the applicant accepted full responsibility for his actions which he described as “unacceptable and unjustified” and accepted that he is “ashamed” of his behaviour and offending, and remorseful (at [97]);

(l)    acknowledged that the applicant had taken steps, through programs available to him while incarcerated, to rehabilitate himself. The Minister accepted that this will serve as a protective factor to prevent the applicant reoffending in the future (at [98]);

(m)    acknowledged that the applicant is devoted to his children; is a hard worker; has the ongoing support of his family and community and that the applicant said that there is no risk of him reoffending because he has a supportive family, employment and the ongoing support of Ms Stanley (at [99]); and

(n)    acknowledged that the applicant said that the risk of him reoffending is “very low” and that his offending was “out of character”.

51    Then the Minister set out three matters which indicated some greater uncertainty as to the risk that the applicant would reoffend. The Minister said (at [101]-[103]):

[101]    However, I note that the applicant is currently in immigration detention and his rehabilitation is yet to be tested in the community.

[102]    While I note the support of family can be a positive protective factor in rehabilitation, I also note Mr Fetelika offended with these support mechanisms in place and that one of Mr Fetelika’s older brothers and his cousin were his co-offenders and they did not persuade Mr Fetelika out of his offending, rather they were co-offenders in the assault of Mr Tome.

[103]    Mr Fetelika stated at the time of his offending he was very emotional and did not know how to control his emotions. I find while his explanation may provide a reason for the offence, it does not provide a defence and raises concerns in the future if he continues to experience very emotional situations, would he be able to exercise the degree of restraint to not reoffend.

52    The Minister then said (at [104]-[106]) that he:

(a)    gave weight to Ms Stanley’s statement that the applicant is not a violent man and that she supports him remaining in Australia;

(b)    gave weight Judge Bozic SC’s conclusion that he was satisfied that the applicant has good prospects of rehabilitation and was ultimately unlikely to reoffend; and

(c)    took into account Ms Hare’s assessment that the applicant’s offending was “situation-specific” and the likelihood of his reoffending is reduced, and with the appropriate intervention any risks of reoffending could be further moderated.

53    The Minister concluded his consideration under the “risk to the Australian community” subheading at [107]. The Minister found that there was a “low risk” that the applicant will reoffend while noting that if the applicant did so it could result in physical and psychological harm to members of the Australian community.

54    Under the subheading “Conclusion” the Minister said (at [109]-[114]) that he:

(a)    gave primary consideration to the best interests of the applicant’s children, the applicant’s minor nieces and nephews, and Ms Stanley’s two daughters who knew the applicant as a father figure, noting that he had found that their best interests would be served by revocation of the original decision (at [109]); and

(b)    gave consideration to the length of time the applicant had made a positive contribution to the Australian community and the consequences of non-revocation of the visa cancellation decision for his other family members and the extent of impediments that the applicant would face if he was removed to New Zealand (at [110]).

55    On the other hand, the Minister said that he also gave significant weight to the very serious nature of the violent crimes committed by the applicant (at [111]), and that the Australian community could be exposed to harm should the applicant reoffend in a similar fashion. Importantly, the Minister said that he “could not rule out the possibility of further offending” by the applicant (at [112]).

56    The Minister said that he was cognisant that where harm could be inflicted on the Australian community, even other strong countervailing considerations may be insufficient for him to revoke the visa cancellation decision (at [113]). The Minister concluded that the applicant presented “an unacceptable risk of harm to the Australian community” and that the protection of the Australian community and the expectations of the community outweighed the best interests of his children and other minor family members and the other considerations described above (at [114]).

57    On that basis the Minister said that he was not satisfied that there was another reason why the decision to cancel the applicant’s visa should be revoked (at [115].

The application for judicial review

58    On 26 February 2021 the applicant filed this proceeding seeking judicial review of the Minister’s decision to not revoke the visa cancellation decision. On 31 March 2022 he filed an amended application pursuant to leave granted on 2 December 2021.

59    The amended application raises two grounds of review, but the applicant only presses ground two. That ground alleges as follows:

The Respondent fell into jurisdictional error because it failed to give proper, genuine and realistic consideration to the time the Applicant spent in the Australian community between May 2017 and October 2018.

Particulars

(a)    There was no acknowledgement by the Minister of the significant period of time the Applicant spent in the Australian community prior to beginning his term of imprisonment.

(b)    The sentencing remarks dated 4 October 2018 set out the following facts:

(c)    There was no evidence before the Minister that the applicant spent any time in custody between May 2017 and October 2018.

(d)    The Minister did find that the applicant is currently in immigration detention and his rehabilitation is yet to be tested in the community.

(e)    However, no consideration was given to the 16-month period he spent in the Australian community before going to prison and subsequently on [sic] to detention during which time he did not reoffend, in relation to the possibility that he may reoffend in a similar manner.

(f)    Nor did the Respondent consider that the applicant was released on parole on 3 July 2020.

(g)    If the Respondent had carried out its statutory task, this may realistically have resulted in a different outcome.

Consideration

60    The applicant contends that the Minister’s decision is affected by jurisdictional error because the Minister made a materially erroneous factual founding that was not open on the evidence, being the finding at [101] that the applicant’s “rehabilitation is yet to be tested in the community”.

61    As the applicant submits, the materials before the Minister show that the applicant was living in the community, and not in custody, for just over 16-months from committing the offences on 28 May 2017 up to his sentencing and imprisonment on 4 October 2018. In his sentencing remarks Judge Bozic SC expressly said “[t]he offender has not spent any time in custody and so the sentence to be imposed will commence today” (CB 158). The materials show that the first time the applicant went into custody was on 4 October 2018.

62    The applicant argues that the 16-month period between his offending conduct and his incarceration was clearly a period in which, contrary to the Minister’s statement at paragraph [101], his rehabilitation was, in fact, tested in the community. He contends that the Minister purported to rebut the applicant’s submission that he was rehabilitated and presented a “very low” risk of reoffending by stating that the position was “untested” in real world conditions, and in doing so the Minister made an inference, not open on the materials, which worked to eliminate the force of the applicant’s claim of having been rehabilitated.

63    The following materials before the Minister also showed that the applicant was not in custody between 28 May 2017 and 4 October 2018:

(a)    An agreement for consent orders signed by the applicant and Ms Stanley in early August 2017 which recorded their agreement in relation to ongoing custody and access regarding their two sons (CB 256-257). The agreement provided that the applicant was to drop off and pick up the boys from child care and day care at specified times, and that the parties were to agree by text in relation to any periods which the children were to reside with the applicant. That was supported by the “Personal Circumstances Form” the applicant provided to the Department in June 2019 as part of his request for revocation (CB 214). In that form the applicant said that the access regime agreed between him and Ms Stanley was that he would pick up the two boys from school or day care on the Friday of every second weekend. On Fridays he would finish work by 3:00 pm to make sure to pick them up by 4:00 pm and his two sons would then sleep over on Friday, Saturday, Sunday and Monday nights. He would always take Mondays off work. On Tuesday morning he would get them ready for school and drop them off before he went to work. Obviously enough, there would be no need for such an agreement if the applicant was in custody;

(b)    Ms Hare’s report said that she assessed the applicant for one hour and 40 minutes at her offices in the Sydney CBD on 16 July 2018, and made it clear that he attended in person (CB 240-241). Obviously, the applicant could not have attended that appointment if he was in custody; and

(c)    A letter to the applicant from the Child Support division of the Department of Human Services dated 9 July 2019 which made it clear that the applicant was gainfully employed for the period 1 August 2018 to 31 July 2019 and he had been required to pay $472.50 per month to Ms Stanley in child support in relation to the two boys. The letter also indicated that his employment was continuing as he was assessed to pay $486.33 per month in child support for the next period, 1 August 2019 to 31 October 2020 (CB 255). The applicant would not have been required to, and I infer would have been unable to, pay child support if he was in custody.

64    The Minister argues, first, that the applicant’s submission is predicated upon a narrow and non-contextual reading of one sentence of the Tribunal’s reasons. He submits, and I accept, that the Court should not be “astute to discern error” in the reasons of an administrative decision-maker. I proceed on the basis that the Minister’s reasons should be read fairly, in context, and the reasons read as a whole: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 278, 282; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [38] per Kiefel CJ, Keane, Gordon and Steward JJ.

65    Second, the Minister contends that, on a fair reading, the impugned statement at [101] was not false as the applicant contends. He argues that the usual and ordinary meaning of rehabilitation is “the action of restoring someone to health or normal life through training in therapy after imprisonment, addiction or illness”, and, on a fair reading, the Minister did not find or suggest that the applicant had not been in the community at any time since his commission of the offences in May 2017. Rather, the Minister found that the applicant was, at the time of the decision, in immigration detention (which was true) and that his rehabilitation was yet to be tested in the community. He submits that, read in context, the latter part of the statement at [101] meant that the Minister had no way of assessing the veracity of the applicant’s representation to be a “very low” risk of reoffending in light of the various matters he had advanced as supporting his rehabilitation, because he had been incarcerated since those steps towards rehabilitation had been undertaken.

66    Relatedly, the Minister argues that he took into account the applicant’s representations about the courses he had undergone while in prison (at [87]-[89]) and since being in immigration detention (at [90]). Counsel for the Minister submitted that the Minister took into account the applicant’s representations about the applicant’s insight into how he can ask for help (at [91]); the applicant’s character references (at [93]); the opinion of Ms Hare as to the applicant’s psychological disposition (at [95]) and the protective influence of his family, community and employment (at [98]-[99]). Counsel said that it was open to the Minister to weigh the fact that the applicant’s rehabilitation was yet to be tested in the community, following his undertaking of the various courses while incarcerated, and having regard to the insight he had developed, against the applicant’s professed rehabilitation. On the Minister’s argument it is clear (at [92]) that he did not overlook the fact that the applicant enjoyed some freedom before being taken into custody in October 2018, as the Minister gave weight to the applicant having ceased drinking alcohol “approximately a month after the offence”.

67    I do not accept the Minister’s argument. To my mind, counsel for the Minister artfully sought to re-cast the Minister’s reasons so that they mean something different from what the Minister actually said.

68    In the impugned statement (at [101]) the Minister said “[h]owever, I note that Mr Fetelika is currently in immigration detention and his rehabilitation is yet to be tested in the community.” Plainly, the first part of the statement - “Mr Fetelika is currently in immigration detention” - was true. But I do not accept the Minister’s contention that the latter part of the statement is a finding that the Minister had no way of assessing the veracity of the applicant’s representation to be a “very low” risk of reoffending in light of the various matters he had advanced as supporting his rehabilitation, because the applicant had been incarcerated after he took those steps towards rehabilitation.

69    On a fair reading of the reasons as a whole, and reading the impugned statement in context, I am not persuaded that the latter part of the impugned statement should be understood as having the meaning for which the Minister contends. The Minister did not say that the applicant’s efforts at rehabilitation after he went into custody had not been tested in the community. He made a more general statement about the applicant’s rehabilitation which, on a fair reading, should be understood to have also captured the period before the applicant was imprisoned. In doing so, the Minister made an erroneous statement because the materials before the Minister indicated that the applicant took some substantial steps in his rehabilitation before he was imprisoned on 4 October 2018. Over that period his efforts at rehabilitation had been tested in the real world, and they could not be dismissed on the basis that they had not been.

70    The false statement related to an issue that was central to any risk of reoffending which the applicant posed to the Australian community. Its significance can be seen at several points of Minister’s reasons.

71    First, the Minister noted (at [75]) that the Applicant had consumed five stubbies of beer at a work function prior to going around to Ms Stanley’s house. At [80] the Minister endorsed Judge’s Bozic SC’s acceptance of Ms Hare’s opinion that, although the applicant was not heavily intoxicated at the time of the offences, the alcohol he had consumed “would no doubt have detrimentally impacted his self-control”. Thus the Minister accepted that one of the reasons the applicant engaged in the offending conduct was that he had been drinking on the evening of 27 May 2017.

72    The Minister went on to accept that the applicant had ceased drinking alcohol altogether from about a month after the offences (at [92]). In circumstances where alcohol had been a contributing factor to the applicant’s offending conduct, his decision to abstain from consuming alcohol and his success in doing so was plainly an important step in his rehabilitation. In stating that the applicant’s “rehabilitation is yet to be tested in the community” the Minister failed to take into account that for about 15 months prior to the applicant’s conviction and incarceration the applicant had successfully abstained from alcohol; doing so while working productively (as the JF Painting reference shows) and apparently living peacefully in the community while at the same time dealing with the upset of a lost relationship and family unit, and the pressure of an impending court hearing and sole-parenting two young boys for four days a fortnight while working full-time.

73    Second, the Minister adopted Judge Bozic SC’s acknowledgement that the applicant had pleaded guilty to the three charges against him (at [96]) and acknowledged (at [97]) that the applicant accepted full responsibility for his actions which he described as “unacceptable and unjustified”, and accepted that the applicant was “ashamed” of his behaviour and remorseful for the pain he had caused his victims. In submissions counsel for the Minister accepted that the applicant’s admission that his behaviour was wrong that and his statement of remorse were critical matters going to the question of the risk of the applicant reoffending.

74    The applicant’s acceptance of full responsibility, together with his shame and remorse, culminated in a guilty plea on 4 October 2018. All of that occurred prior to the applicant’s imprisonment, and plainly indicated that his efforts at rehabilitation were well advanced before he was imprisoned. In stating that the applicant’s “rehabilitation is yet to be tested in the community” the Minister failed to take into account that the applicant was productively working and (apparently) peacefully living in the community for over 16 months prior to his incarceration, and he had come to accept that he was fully responsible for the offending, and become ashamed and remorseful for his conduct. In my view, it is likely that the applicant’s introspection and understanding as to the cause(s) of his offending conduct, and his genuine efforts at behavioural change including by completely giving up alcohol, formed the major part of the applicant’s efforts at rehabilitation, rather than his completion of training courses in prison some of which had little or nothing to do with rehabilitation.

75    In relation to the two matters referred to above, the Minister accepts that they are both relevant and were appropriate to be taken into account by him in relation to the general risk of reoffending, but he says that he did so. The Minister noted that he accepted (at [92]) that the applicant had ceased drinking alcohol altogether, from about a month after the offences, and thereby took that into account. He says that shows that he was aware that the applicant was out on bail at that time because it is obvious that the applicant would not be drinking alcohol while in prison. On the Minister's argument, in referring to “rehabilitation” (at [101]) the Minister was not referring to pre-imprisonment matters but rather to the steps towards rehabilitation the applicant had taken since imprisonment.

76    I do not accept the Minister’s submission. It involves an attempt to recast the meaning of the latter part of the statement at [101], when on a fair reading of the reasons the Minister did not give consideration to the significant progress the applicant had made in his rehabilitation before he was imprisoned, which efforts, contrary to the impugned statement, had been tested in the community.

77    The Minister further argues that his reasons are set out in the way they are, and do not go into “greater detail” about the 16 month period the applicant spent living and working in the community before his incarceration because the applicant did not put his representations that way. The Minister submits that the applicant did not advance any particular argument or representation that he had achieved rehabilitation prior to his imprisonment, and instead his written submissions, his written statement, and the documents he lodged largely referred to courses and steps he had taken since he was taken into custody.

78    The Minister contends, and I accept, that he was obliged to engage in an active intellectual process with significant and clearly expressed relevant representations made in response to an invitation under s 501CA(3)(b) (citing Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531 at [30] per Rangiah J and [75] per Colvin J, with Reeves J agreeing; Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198; 267 FCR 492 at [47] (Jagot, Rangiah and Banks-Smith JJ)). He submits that it was not his obligation to make out the applicant’s case, and he rejects the applicant’s contention that it was immaterial that the applicant made no specific representations regarding the 16 month period he spent living and working in the community.

79    The Minister relies upon the remarks of Rares and Robertson JJ in Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643, where their Honours said (at [48]):

It should again be emphasised that the issue for the Minister was whether he was satisfied that there was another reason why the original decision to cancel the visa should be revoked. It was for the [revocation applicant] to put before the Minister by way of representation what it was she wished the Minister to take into account. The Minister had no legal duty, referable to jurisdictional error, to ask for further representations from the respondent or to make inquiries into the representations she had made.

80    He also relies upon the similar remarks of Flick J in that case (at [62]), where his Honour said:

An exercise of the discretionary power conferred by s 501CA(4) requires the consideration of "representations" which have been made by a visa holder: Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [55] to [56] per Robertson J; Minister for Home Affairs v Buadromo [2018] FCAFC 151 at [41] per Besanko, Barker and Bromwich JJ; Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198 at [47] per Jagot, Rangiah and Banks-Smith JJ. A proper consideration of "representations", however, does not require the consideration of all such matters as may be found to have been set forth in those "representations" by the visa holder. A visa holder is not to be permitted to pursue a course of parsing and analysing "representations" with a view to identifying some peripheral matter which has not expressly found its way into the reasons for a decision made under s 501CA(4) and to thereafter rely upon the absence of such a reference to establish jurisdictional error.

81    I have no difficulty with the authorities upon which the Minister relies but they are not apposite in the present case. It is uncontroversial that the applicant represented to the Minister that he was rehabilitated and presented a “very low” risk of reoffending. The Minister was required to give proper consideration to that representation. The applicant was not obliged to break down that representation into an argument that some parts of his rehabilitation occurred in the 16-month period prior to his imprisonment, and other parts occurred while he was in custody and then in immigration detention. The applicant was not to know that the suggestion that his rehabilitation had not been tested in the community would be raised by the Minister as a basis to undercut his representation as to the extent of his rehabilitation. Indeed, it was the Minister’s error in stating that the applicant’s rehabilitation “is yet to be tested in the community” which introduced the proposition upon which the Minister now seeks to rely.

82    Nor is the application concerned with the Minister's failure to go into “greater detail” about the 16 month period that the applicant spent peacefully and productively living and working in the community. In fact, the Minister gave that period little or no attention when it was an important matter to be considered in the context of the applicant’s claim to be rehabilitated. In considering the extent of the applicant’s rehabilitation and thus his risk of reoffending, the Minister either overlooked or failed to give meaningful consideration to the 16-month period prior to his imprisonment that the applicant had spent working productively and (apparently) living peacefully in the community, and no consideration to the fact that the applicant took some substantial steps in his rehabilitation before he was imprisoned. The Minister’s statement (at [101]) indicates that he restricted his consideration to the steps in the applicant’s rehabilitation taken while he was in custody and immigration detention, which had not yet been tested in the real world. On that basis, the Minister concluded that the risk of reoffending by the applicant was “low” rather than “very low”, and he that he could not “rule out the possibility” of further offending by the applicant (at [112]). Counsel for the Minister properly accepted that there is a difference between those two estimates. The central point is that the Minister purported to rebut the applicant’s submission that he was rehabilitated and presented a very low risk of reoffending including by noting that the position was untested under real world conditions. In doing so, the Minister made an inference, not open on the materials, which worked to eliminate (or at least significantly reduce) the force of the applicant’s claim to having been rehabilitated.

83    Finally, the Minister submits that the impugned reasoning must be viewed having regard to the Ministers ultimate conclusion on risk. The Minister found the applicant was a “low risk” of reoffending (at [107]) and that he could not “rule out the possibility” of further offending (at [112]). The Minister argues that those finding were open on the evidence and, having regard to the Minister’s reasons, could not possibly have led to a different outcome by consideration of the applicant’s time in the community prior to his incarceration. He submits that it is not the case that the slender risk of reoffending that the Minister identified was the driving force behind the decision, and that the Minister was at pains to emphasise that the risk of the applicant reoffending was at the low end. He notes that the applicant bears the onus of establishing that the asserted error was a material error going to jurisdiction (MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ), and contends that the applicant failed to establish that, had the asserted error not been made, there was a realistic possibility of a different outcome.

84    I accept that the Minister’s error must be viewed in the context of his ultimate conclusion as to the risk of the applicant reoffending, but I am nevertheless satisfied that the error is “material” in the sense explained in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1 and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421.

85    In SZMTA at [48]-[49] Bell, Gageler and Keane JJ explained that the requirement that, ordinarily, an error be material before it may constitute a jurisdictional error, involves an assessment by the Court as to whether there is a “realistic possibility” that the outcome could have been different had the error not been made. In Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; 276 FCR 75 at [66] per Mortimer and Bromwich JJ, the Full Court said that the adjective “realistic” in the phrase “realistic possibility” “is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable, no more than that.” The same was said in DNQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 72; 275 FCR 517 at [60] (McKerracher, Mortimer and White JJ).

86    The Minister’s reasons gave almost no attention to the fact that, following his offending conduct, the applicant was working productively and (apparently) peacefully in the community for about 16-months until his incarceration. In this period, he completely gave up alcohol, which had been a contributing factor to his offending, he came to accept that he was fully responsible for the events of that evening, and came to be deeply remorseful and ashamed of his actions, and he did not reoffend. In the same period, Ms Stanley, one of the victims of the violent assault, came to trust him enough to enter into shared parenting arrangements in relation to their two sons and they co-parented, apparently without incident, for about 14 months. In June 2019, I infer partly as a result of her interactions with the applicant prior to his incarceration, Ms Stanley said in her letter of support that she believed the applicant would forever be “regretful for his choices that day” and that she hoped that the applicant would have 50% custody of his children on his release.

87    In the circumstances of this case, the balancing exercise that the Minister was required to engage in involved matters of degree. Had the Minister given meaningful consideration to the fact that a substantial part of the applicant’s rehabilitation had been tested in the community, there is a realistic possibility that the Minister could have reached a different decision and decided to revoke the visa cancellation decision.

Conclusion

88    It is appropriate to make an order in the nature of certiorari to quash the Minister’s decision and an order in the nature of mandamus directing the Minister to determine the applicant’s application for revocation of the visa cancellation decision according to law.

89    I am not aware of any reason why costs should not follow the event, and it is appropriate to order that the Minister pay the applicant’s costs in an amount to be agreed and if not agreed to be fixed by the Registrar on a lump sum basis. I grant the parties liberty to apply within seven days should either party contend that some other costs order is appropriate.

Postscript

90    It will be recalled the applicant was convicted on three charges and sentenced to an aggregate period of imprisonment of three years and six months. In Pearson v Minister for Home Affairs [2022] FCAFC 203 (Allsop CJ, Rangiah and SC Derrington JJ), handed down on 22 December 2022, the Full Court held that the appellant, who had been sentenced to aggregate period of imprisonment for a number of offences, had not been sentenced (for an offence) to a term of imprisonment of 12 months or more, and consequently her visa was not amenable to mandatory cancellation under s 501(3A) of the Act.

91    On 13 February 2023, when these reasons were being finally proofed, the solicitor for the Minister emailed chambers to advise that this proceeding is affected by Pearson; that the applicant had therefore been released from immigration detention; and that the Minister was currently considering whether to seek special leave to appeal Pearson.

92    Having regard to the Minister’s acceptance that the reasoning in Pearson applies to this matter, if the Minister decides not to appeal that decision or is unsuccessful in any appeal, there will then there will be no requirement for the Minister to re-determine the applicant’s revocation application. In that event it may become appropriate to vacate Order 2, or make some other order, and accordingly I have granted liberty to the parties to apply.

Associate:    

Dated:    16 February 2023