Federal Court of Australia

Main v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 446

ORDERS

THE COURT ORDERS THAT:

1.    Extension of time be granted.

2.    Leave be granted to the applicant to rely on the further amended application for review signed 28 March 2023.

3.    The further amended application for review be allowed and the decision to cancel the visa of the applicant dated 25 February 2020 be quashed.

4.    The respondent pay the applicant’s costs to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    By an application filed on 9 September 2022, the applicant seeks an extension of time in which to apply for judicial review of a decision of the then Minister for Home Affairs (the Minister) to cancel his visa. That decision was made on 25 February 2020 and notified to the applicant on 4 May 2022. In support of the application in relation to the extension, the applicant sought leave to rely on a draft further amended application for review signed on 28 March 2023.

2    That application for review is based on three grounds: first, the Minister’s exercise of the statutory power to cancel the applicant’s visa was vitiated by jurisdictional error on the basis of legal unreasonableness or illogical or irrational reasoning in relation to his findings as to the applicant’s rehabilitation and representation of risk of harm; second, in evaluating impediments that would be faced by the applicant in establishing himself and maintaining basic living standards if removed to the United States of America (USA), the Minister made findings in relation to which there was no evidence; and third, the Minister’s assessment of the impediments that would be faced by the applicant in establishing himself and maintaining basic living standards if removed to the USA was vitiated by jurisdictional error on the basis of legal unreasonableness or illogical or irrational reasoning.

3    For the reasons below, the extension of time is granted and the application is allowed.

Extension of time

4    The power to extend time in which to appeal is unfettered. However, the authorities identify a number of matters bearing upon the exercise of the discretion to extend time. In Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348-349, Wilcox J identified a number of factors which are often cited in this regard. The matters identified by his Honour to which the Court will usually have regard are: (1) the length of the extension sought; (2) the explanation for the delay, including consideration of any action taken by the applicant, other than by way of making an application for review; (3) the prejudice to the applicant if the extension of time is refused; (4) any relevant prejudice to a respondent if the extension of time is granted; (5) the conduct of the parties in the litigation; (6) the merits of the substantial application; and (7) the interests of justice more generally. See, for example, Parker v The Queen [2002] FCAFC 133 at [6] and [17]-[19] per Spender, O’Loughlin and Dowsett JJ.

5    The applicant submitted that extending the time for the bringing of the application could cause no prejudice to the respondent, and emphasised that, because the Minister made the decision personally, no merits review is available to the applicant (meaning the only review that is available to him is the review in this Court).

6    The Minister opposes the application only on the basis that there is no merit in the grounds sought to be advanced if leave is granted.

7    In those circumstances, it was accepted by both parties that submissions be made on the merits of the proposed grounds, and if leave is granted the appeal be determined on those submissions.

Background

8    The applicant was born in the USA on 22 April 1955 and arrived in Australia on 14 September 1967.

9    In March 1985, the applicant was convicted of murder and of an assault and armed robbery that were committed in June 1983: see R v Main [2009] NSWCCA 14 (CCA) at [6]-[8]. He was sentenced to imprisonment for life on each count: see CCA at [8].

10    The applicant was convicted of a second murder committed on 27 November 1983 of an inmate at Long Bay Gaol, and on 28 May 1987 received a further life sentence (see CCA at [9]), pursuant to s 19 of the Crimes Act 1900 (NSW) which at that time provided for a mandatory life sentence for murder (see CCA at [10]).

11    The introduction of the Sentencing Act 1989 (NSW) enabled a person who had been sentenced to life imprisonment to apply for a redetermination of sentence: see CCA at [11]. The applicant made two unsuccessful applications for redetermination in 1995 and 1999: see CCA at [12]-[13]. A third application for redetermination made in 2008 was granted: R v Main [2008] NSWSC 692 (R v Main). The sentences for the applicant’s first two offences were re-determined with a non-parole period ending on 4 July 2008. More particularly, for the assault with intent to rob, the sentence was 25 years and 2 months to commence on 29 June 1983, with the non-parole period ending 4 July 2008: see R v Main at [27]. For the first murder conviction, the sentence was 26 years imprisonment to commence on 29 June 1983, with the non-parole period ending 4 July 2008: see R v Main at [29]. The sentence for the murder at Long Bay Gaol was not re-determined (and therefore remains a life sentence), but the Court set a non-parole period of 25 years that ended on 27 May 2012: see R v Main at [35].

12    The Crown appealed the non-parole period imposed in relation to the second murder. That appeal was rejected, with the Court of Appeal observing, inter alia, at CCA [43]:

[43]    It is important to stress that the high level of criminality exhibited by the respondent in his multiple offences remains reflected in the maintenance of the head term of imprisonment for life. The specification of a non-parole period merely sets a date of eligibility and does not imply a probability of release. The setting of a non-parole period establishes only a date upon which release is possible. Whether actual release in fact occurs is dependent upon a decision of the parole authority which is obliged pursuant to s 135 of the Crimes (Administration of Sentences) Act 1999 not to make an order for parole unless it is appropriate, having regard, inter alia, to the need to protect the safety of the community and the likelihood of the respondent being able to adapt to normal lawful community life. It is also obvious, but if the respondent is granted parole and breaches any of its conditions he is liable to be returned to custody at any time during his lifetime, having regard to the over-arching and remaining indeterminate head sentence.

13    The applicant had also been convicted of a number of other offences between 1975 and 1986.

14    On 17 June 2016, the applicant was released from prison on parole.

15    On 18 July 2019, the applicant was issued with a Notice of Intention to Consider Cancellation of a visa. On 4 September 2019, the Department of Home Affairs (the Department) again wrote to the applicant in relation to the Notice of Intention to Consider Cancellation. He did not respond, and did not put any submission or material to the Department in support of the position that his visa ought not be cancelled.

16    On 25 February 2020, the then Minister for Home Affairs signed: a cancellation of the applicant’s visa under s 501(2) of the Migration Act; and a statement of reasons for that cancellation (the statement of reasons). Notice of the cancellation was served by letter dated 4 May 2022. The applicant was taken into immigration detention on that date, where he has remained since.

Ground 1: The Minister’s exercise of the statutory power to cancel the visa was vitiated by jurisdictional error on the basis of legal unreasonableness or illogical or irrational reasoning in relation to findings as to the applicant’s rehabilitation and representation of risk of harm

17    In this ground, the applicant identifies three particulars challenging aspects of the findings: first, the finding at [29] of the statement of reasons that the applicant’s rehabilitation progress had “not been tested outside of parole supervision”; and second and third relating to [32]-[33], [53] and [56] of the statement of reasons, in respect to the finding of the applicant representing an “unacceptable risk of harm” should he reoffend.

The applicant’s rehabilitation progress “has not been tested outside of parole supervision”

18    This challenge relates to [29] of the statement of reasons, which is as follows:

[29]    With the lack of further information from Mr MAIN, I can accept that Mr MAIN has made some progress in his rehabilitation. However, I note this progress has not been tested outside of parole supervision. Should Mr MAIN continue to engage in substance abuse this increases the likelihood of his reoffending.

19    The applicant submitted that at the time of the decision to cancel his visa, he remained sentenced to life imprisonment. He submitted that he would be permanently on parole, which could end only if he breached it and was returned to prison to resume serving his life sentence. Therefore, no occasion could arise in which he would be “tested” outside of parole supervision. He submitted it was not open to the Minister to rely on this to counter a positive finding of rehabilitation. Relying on Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [133] and [135], the applicant submitted that among the reasons a decision might be said to be illogical or irrational is “if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn”: SZMDS at [135]. The impugned finding falls squarely within that description and the decision ought to be set aside on that basis.

20    Put simply, the respondent accepts that if the impugned passage is read as contended by the applicant, then the Court would probably find error, but that it ought not be read in that way. It is accepted that the Minister knew, or should have known, that the applicant was on lifetime parole. Rather, it was submitted that the passage should be read as meaning that while the applicant has made some progress in his rehabilitation, he has not made that progress while living a life entirely free from any monitoring whatsoever. The respondent submitted that progress while living a life entirely free from any monitoring whatsoever might be particularly important and telling of levels of progress and insight. The passage was said to be about the breadth, depth and genuineness of the applicant’s rehabilitation, especially in relation to drug use. Accordingly, the respondent submitted that the applicant making progress while on parole might reasonably make one cautious about how much to read into it. Such reasoning was said to be rational.

21    I cannot accept the respondent’s submissions. They read more into the passage than evident on its face, read in context. Indeed, the statement of reasons does not refer to the applicant’s rehabilitation progress only occurring while he has been on parole, but rather says that it has not been tested outside of parole supervision. Further, I note that preceding [29] of the statement of reasons are references to, inter alia, evidence before the Supreme Court (at the time of the applicant’s redetermination of his life sentences) from psychiatrists as to his rehabilitation. That evidence reflects that the applicant’s progress began before leaving prison on parole, and before the redetermination in 2008.

22    The sentiment in the impugned sentence, or something similar, is not infrequently relied on by decision-makers in this context, to express caution in relying on favourable conduct consistent with rehabilitation which is said to have only occurred in a custodial or supervised environment. It is directed to the weight that can be attached to the evidence of rehabilitation. Typically, it is referred to in circumstances where the rehabilitation relied upon is said to have occurred and a determination as to a visa has been made, all while an applicant is still in custody or detention, with their rehabilitation not having been tested by being in the community. It is then reasoned that the person might be a risk when unsupervised because their progress to date has been under supervision. That is, without the supervision, such rehabilitation may not continue.

23    That is also the obvious and natural meaning of the phrase used in this passage, considered in context. Namely, as the rehabilitation has not been tested outside of parole supervision, there is a risk that it may not continue without that supervision. The Minister’s conclusion in the sentence immediately following only serves to reinforce that natural reading.

24    However, this case is factually different. Ordinarily such reasoning could not be questioned, and challenges to it have been unsuccessful. However, it is not in dispute that the applicant is a very rare case in that he will be subject to lifetime parole. Therefore, unlike other persons, outside of custody he will always be on parole, and in that context have supervision in the manner referred to in the passage. The fact that the applicant was on lifetime parole was apparent from the materials before the Minister. For example, as referred to in CCA at [43] (which was before the Minister), if the applicant breaches parole conditions at any point during his lifetime, he is liable to be returned to custody in relation to his life sentence. That being accepted, the relevance of the applicant’s rehabilitation not having been tested without parole supervision is unclear. The circumstance will not arise. The Minister’s finding was made adversely to the applicant’s interests as impacting on a positive finding of his rehabilitation.

25    The respondent also submitted that its reading should be preferred because it does not involve blatant error. That submission was on the basis that reasoning by the Minister as follows would be illogical: the applicant has committed many serious offences and is going to be on lifetime parole, but I do not know what is going to happen when he is not on parole. However, that cannot overcome the artificiality in the respondent’s reading of the passage. The fact that the applicant’s rehabilitation progress occurred under supervision is said by the respondent to relate to the “genuineness … and the comfort one can draw from the steps that have been taken to date”. However, that submission does not recognise that the passage goes on to state that the rehabilitation has not been tested outside of parole supervision. Indeed, even the endpoint of the applicant’s submission reflects that it is also premised on the basis that as the rehabilitation has not been tested outside of the parole supervision, there is a risk that unsupervised by parole the applicant’s rehabilitation may not continue. It follows that the reliance on testing outside of parole supervision is illogical, even on the respondent’s reading of the passage.

26    That is so whether the statement was made on the basis is that the Minister was not aware of the applicant’s lifetime parole or that he was aware of it and reasoned as such regardless. The respondent accepted that given the materials before him, at the least, the Minister ought to have known. I note in that context that there is no reference to the fact the applicant is on lifetime parole in the statement of reasons.

27    I accept that this is a finding or reasoning along the way to reaching the conclusion by the decision-maker in considering the risk to the community. So much is readily apparent from the structure of the Minister’s reasons. I accept the applicant’s submission that there is no logical connection between the evidence and the inference drawn, such that the finding is illogical and irrational: see SZMDS at [132]-[135]. The Minister’s reasoning is infected by the error established in respect to first particular above.

The finding of unacceptable risk

28    The applicant submitted that he had been in the community on parole for nearly four years at the time the decision to cancel his visa was made. After the decision was made, more than a further two years passed before he was notified of it and taken into immigration detention.

29    The applicant also submitted that while the Minister stated that he had provided “no details of any rehabilitation undertaken to date”, there was such evidence before him in R v Main, which included evidence that: the applicant had “changed significantly for the better”, from a correctional officer who had known him for twenty years (R v Main at [17]); “risk of serious re-offending … [was] … probably low” (as long as the applicant did not return to drug use), from Dr Lucas, who had the advantage of first assessing him ten years prior (R v Main at [17]); the applicant was free of illicit drug use and was maintained on a stable methadone (opioid replacement therapy) program (R v Main at [21]); and the applicant had been selected to participate in the Phoenix programme, a drug abstinence and behaviour modification program of 7.5 months’ duration not usually available to prisoners who did not have a known date of possible release (R v Main at [22]). Also relevant was said to be the fact that an expert body, the NSW Parole Authority, had made a decision to release the applicant into the community, noting s 135 of the Crimes (Administration of Sentences) Act 1999 (NSW), which required that an order for parole not be made “unless it is appropriate, having regard, inter alia, to the need to protect the safety of the community and the likelihood of the respondent being able to adapt to normal community life”: CCA at [43].

30    The applicant accepted, referring to CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 401 ALR 647 (CKL21), that a decision-maker is entitled to conclude that even a low risk of offending is unacceptable if the gravity of the harm that might eventuate is sufficiently serious (CKL21 at [66]), and that on many occasions the seriousness of the applicant’s crime may be sufficient to justify a decision to refuse a visa (CKL21 at [69]). However, the applicant submitted that: if that is the basis of the decision, it should be said (CKL21 at [70]); and that was not the basis of the revocation in this case. He submitted that: a conclusion that a person represents an unacceptable risk of harm to the Australian community must be based on probative evidence concerning the risk, or likelihood, of the person committing an offence of a particular kind in the future; and a conclusion that a risk “cannot be ruled out” does not, of itself, logically establish the existence of a risk: CKL21 at [70]-[74]. The applicant submitted that the Minister’s reasons did not disclose a probative basis for the finding of a future risk. In light of the evidence to the contrary that was before the Minister at the time of the decision, it was said not to be open to him to make the finding he did on future risk.

31    The respondent accepted that the decision to cancel the applicant’s visa was not made based on his criminal offending alone, but that was nonetheless a significant and relevant fact in the assessment of the risk of reoffending.

32    The respondent identified four “buckets” of evidence: first, the applicant’s substantial criminal history; second, evidence of the applicant’s rehabilitation, which was mostly positive, but with caution in that further was required to “lock in” the progress made, regarding which the Minister had no information; third, that there had been some incidents in custody, although not particularly serious, some of them after the redetermination of the applicant’s sentence in 2008; and fourth, that the applicant had not reoffended since being released on parole on 17 June 2016, as at the time of the National Criminal History Check on 12 June 2019. As to the fourth bucket, the respondent submitted that the Court would only find that the Minister’s conclusion was unreasonable or irrational if that factor on its own was enough to override the other matters. The respondent submitted that such a conclusion could not be reached where, although there was no offending up until 12 June 2019, given the applicant’s lack of response, the Minister was in a state of uncertainty as to what had happened since.

33    The Minister’s reasoning is infected by the error established in respect to first particular above. So much is apparent not only because it forms part of the reasoning, but also in the nature of the reasoning process undertaken.

34    It is sufficient to note that the respondent accepts that the decision to cancel the applicant’s visa was not made by relying on the seriousness of the offences alone as creating the unacceptable risk: cf CKL21 at [69]. Rather, although that was a factor, no doubt a substantial one, the Minister concluded that the applicant presented an unacceptable risk of harm to the Australian community also taking into consideration other matters. This was made difficult by the applicant as he did not take the opportunities to provide submissions to the Minister. That said, the buckets of evidence relied on in the respondent’s submissions reflect there was some relevant material before him.

35    As referred to above, the second bucket as to rehabilitation was accepted by the respondent to be mostly positive to the applicant, with caution as to the supports required to confirm his progress (of which the Minister had no information). The fact of lifetime parole, which is not referred to anywhere in the statement of reasons, is relevant to the respondent’s submission about the absence of information about the supports required. The erroneous finding regarding rehabilitation at [29] must also fall within this bucket. The reasoning at [21]-[33] of the statement of reasons, including [29], results in the finding at [33]. Namely, that there “is an ongoing risk” that the applicant “will re-offend”. That, in turn, feeds into the conclusion at [56], that the applicant “represents an unacceptable risk of harm to the Australian community”.

36    I note that, simply because the applicant had been on parole from 17 June 2016 to 12 June 2019 without reoffending does not necessarily render the finding of “unacceptable risk” at [56] illogical. Moreover, the finding as to unacceptable risk takes into account not only the likelihood of an event occurring, but also the seriousness of the consequences if it did occur, as at [53] and [55] of the statement of reasons. The seriousness of those consequences are self-evident in this case.

37    However, as explained above, the respondent accepts that the finding as to unacceptable risk was not based only on the applicant’s criminal offending. The reasoning leading to the finding of unacceptable risk cannot be divorced from the error identified above at [18]-[27], such that a conclusion cannot be reached separately about these particulars. This reflects the materiality of the error made in [29] of the statement of reasons. I return to the question of materiality below.

38    I also note, as an aside, that although the decision to cancel the applicant’s visa was made in 2020, it was not served on him for over two years (during which time he remained in the community). Although this approach does appear to be rather curious if the applicant was considered to be an unacceptable risk to the community, and the applicant relies on it, any legal unreasonableness is to be judged at the time the power is exercised: Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 at [26]. Accordingly, the application for judicial review is based on the material before the decision-maker.

Grounds 2 and 3: Whether findings in relation to which there was no evidence, legal unreasonableness or illogical or irrational reasoning in the Minister’s evaluation of impediments that would be faced by the applicant in establishing himself and maintaining basic living standards if removed to the USA

39    The applicant contends that the statement of reasons does not indicate the basis of the information relied on to make the findings at [45]-[49] that are the subject of this ground. Those paragraphs are as follows:

45.    I have considered the impediments that Mr MAIN will face if removed from Australia to his home country in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of the United States of America.

46.    Mr MAIN is 64 years of age and has not provided the Department with any information in relation to his medical or psychological conditions. However, I am aware Mr MAIN has had a problem with drug use. While there is no evidence Mr MAIN requires ongoing medical treatment, I find that should he require support or assistance in the future he would have similar access to services to those that are generally available to other citizens of the United States of America.

47.    Mr MAIN is unlikely to face any substantial language or cultural barriers if he is returned to the United States of America. The official language of the United States is English and the way of life and social customs are similar to those of Australia.

48.    I accept Mr MAIN will face some hardship upon his removal to the United States of America. I accept Mr MAIN may find it difficult to gain employment as I recognise he is now 64 and has a criminal record which includes a long sentence of imprisonment, which may impact his employment prospects. However, I find Mr MAIN, as a citizen of the United States of America, will be eligible for welfare support equivalent to that of other United States citizens.

49.    I find if Mr MAIN is returned to the United States of America, he will face some hardship in establishing himself and may require support to establish and maintain basic living standards in line with other citizens of the United States.

40    The applicant submitted, relying on Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 395 ALR 403 (Viane) at [17]-[18], that where there is no evidence or supporting material, the Minister must demonstrate either personal or specialised knowledge, or information that is commonly known or accepted (neither of which was done in this case). It was further submitted that, assuming that the Minister did proceed on the basis of some personal or specialised knowledge, it is apparent from the evidence on which the applicant relies that any such “knowledge” would be wrong. It was said not to be based on actual evidence of either the availability of income support or medical services in the USA, nor on any knowledge as to where the applicant would live if removed to the USA. The evidence relied on, which was the affidavit of Alasdair Colin Dougall sworn 24 November 2022, was objected to by the respondent.

41    As the respondent correctly submitted, these grounds are based on an erroneous factual premise. The Minister addressed the issue of impediments, and how the applicant would fare in the context of how other American citizens live, on the premise that he would be treated the same as other persons in his circumstances or position. The respondent also submitted that such a finding could be made with the support of the Minister’s department.

42    That issue addressed is different to whether the applicant would be properly supported by the social security system in the USA if he were to need it. That may be a pertinent question, but it was not what was considered. The evidence sought to be relied on by the applicant went to that question not considered, specifically directed to supporting a submission that the benefits to which a person is entitled may vary depending on which state in the USA they live.

43    Moreover, contrary to the applicant’s submission, the Minister did not have to demonstrate the basis of his familiarity with the United States. In Viane, the Court observed at [17]-[19] (citations omitted):

[17]    If the Minister exercises the power conferred by s 501CA(4) and in giving reasons makes a finding of fact, the Minister must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Minister’s personal or specialised knowledge or by reference to that which is commonly known. By “no evidence” this has traditionally meant “not a skerrick of evidence”.

[18]    There is otherwise nothing in the statutory language of s 501CA(4) of the Act that prohibits the Minister from using personal or specialised knowledge, or commonly accepted knowledge, for the purpose of considering the representations made by an applicant, and in determining whether the Minister is satisfied that there is “another reason” for revocation. Indeed, there are simply no limitations on the sources of information that may be considered by the Minister in determining whether to reach the state of satisfaction prescribed by s 501CA(4)(b)(ii). Nor is there any express requirement that the Minister disclose whether a material finding was made from personal knowledge. In the circumstances of the present case, where no evidence or other material has been identified in support of the Minister’s findings about the speaking of English and the availability of services in American Samoa and Samoa, it can be assumed that the findings proceeded from the Minister’s personal or specialised knowledge or were matters commonly known.

[19]    In exercising the power conferred by s 501CA(4) of the Act, the Minister is free to adopt the accumulated knowledge of the Minister’s Department (“the Department”). Indeed, it is now well established that the Minister may adopt as the Minister’s own written reasons a draft prepared by a departmental officer, provided that such reasons actually reflect the reasons why the Minister had reached her or his decision.

44    Given the finding actually made by the Minister, the evidence relied on by the applicant does not assist in establishing error.

45    These grounds are not established.

Materiality

46    As error has been established relation to ground 1, the issue is whether it is a jurisdictional error.

47    For an error to be jurisdictional it must be material: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA) at [45]; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 177 ALD 464 (MZAPC) at [2]-[4]; Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 (Nathanson) at [32]. Existence or non-existence of a realistic possibility that the decision could have been different but for the error is a question of fact, of which, in an application for judicial review on the ground of jurisdictional error, the applicant bears the onus of proof: MZAPC at [2]-[4], [39] and [60]; SZMTA at [46]; Nathanson at [32].

48    As explained above, the Minister’s reasoning leading to the finding of unacceptable risk cannot be divorced from the error, which reflects on the materiality of the error made in [29] of the statement of reasons. I am satisfied that the Minister’s decision to cancel the applicant’s visa is vitiated on the basis that the process of reasoning that led to it was irrational or illogical. It follows that jurisdictional error is established.

Conclusion

49    As the applicant has established ground 1, an extension of time in which to bring this application is granted, and the application is allowed, with costs.

Associate:

Dated:    11 May 2023