Federal Court of Australia

BAE23 v Minister for Home Affairs [2023] FCA 1152

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time to commence proceedings for judicial review is dismissed.

2.    The proceeding is otherwise dismissed.

3.    The applicant must pay the respondent's costs of and incidental to this proceeding (including reserved costs).

4.    On or before 4.00 pm AWST on 11 October 2023, the parties must file any agreed proposed minute of orders fixing a lump sum in relation to the respondent's costs.

5.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the respondent's costs is referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

JACKSON J:

1    This is an application for an extension of time to seek judicial review of a decision of the respondent (Minister) not to revoke the mandatory cancellation of the applicant's visa under s 501CA(4) of the Migration Act 1958 (Cth).

2    The applicant is a citizen of Sierra Leone. He has lived in Australia since 1982, when he was about 39 years old. He is now 81 years old. In 2011, when he was the holder of a Class BF transitional (permanent) visa, he was convicted of sexual penetration of a child under 16, attempted sexual penetration of a child under 16 and two counts of indecent dealing with a child under 16. For those offences, he was sentenced to 5 years and 4 months imprisonment. Following this, the Minister's delegate cancelled the applicant's visa, as was mandatory under s 501(3A) of the Migration Act. The applicant made representations as to why the mandatory cancellation should be revoked. The Minister, acting personally, decided not to revoke it.

3    The applicant was in prison from the time of his conviction until he obtained parole in June 2015. He was then taken into immigration detention, although his parole was revoked approximately one month later (it appears that was because of a visit by his family, including his minor children, which was allowed by the immigration detention centre but was in breach of his parole conditions). He returned to prison until the end of his term of imprisonment. Some time later again he returned to immigration detention, where he has been ever since.

4    The decision of the Minister that the applicant seeks to challenge was made on 30 November 2016. On 20 April 2023 and, I infer, prompted by the Department's expressed intention to remove him from Australia on that day, the applicant filed the originating application which started this proceeding. That application came before a different judge of this Court on an urgent basis. Following that hearing, the Minister provided an undertaking that while the proceeding remained on foot, he would provide the applicant and his counsel no less than four working days' notice before any removal of the applicant from Australia was to occur. The application for an extension of time then came before me. I heard full argument on the basis that if I granted an extension of time, I would also determine the application for judicial review.

5    At the initial hearing, the applicant represented himself but at the hearing before me he had pro bono legal representation. He seeks leave to amend his originating application to raise proposed grounds of review to the effect, first, that the Minister fell into jurisdictional error by acting unreasonably and illogically, and second, that he failed to discharge the statutory task under s 501CA(4) of the Migration Act of determining whether there was another reason to revoke the cancellation of the applicant's visa.

6    The first proposed ground focusses on the Minister's reasoning for a conclusion that there was a 'likelihood' that the applicant would reoffend and that he represented 'an unacceptable risk of harm to the Australian community'. The second proposed ground focusses on what the applicant contends was ' unreasonable, illogical, meagre, insufficient, or formulaic' reasoning by the Minister in arriving at his ultimate conclusion after weighing the various relevant factors.

7    For the following reasons, the application for an extension of time, and so the proceeding, will be dismissed.

Principles on an application for an extension of time

8    An application to the Federal Court for judicial review of a migration decision must be made within 35 days of the date of the decision (Migration Act s 477(1)), so the applicant is some six years and four months out of time.

9    The Court can extend the time to apply for judicial review under s 477A of the Migration Act if an application is made specifying why the applicant considers it is necessary in the interests of the administration of justice to extend time, and if the Court is satisfied that it is necessary in the interests of the administration of justice to do so: s 477A(2). The first of those conditions has been satisfied in this case. As to the second, in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28, each of the two judgments gave similar, non-exclusive lists of matters to which the Court may have regard in determining whether granting an extension is necessary in the interests of the administration of justice, at [12] (Kiefel CJ, Gageler, Keane and Gleeson JJ):

… the length of the applicant's delay, the reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application.

and at [40] (Gordon, Edelman and Steward JJ, footnotes removed):

… the length of the delay; the explanation for the delay; any prejudice to the administration of justice as a result of the delay; and the prospects of the applicant succeeding in the application or the 'strength or weakness of the case … sought to be advanced and the utility of advancing that case'.

10    In dealing with applications under s 477A(2) it will often be appropriate to assess the underlying merits of the proposed application at a reasonably impressionistic or threshold level, where the inquiry is whether the proposed grounds of review enjoy reasonable prospects of success. Depending on other relevant factors, the interests of justice are likely to be advanced by granting an extension of time to an application with some merit. But it is within the Court's jurisdiction under s 477A(2) to have regard to the merits in such manner as it considers appropriate in the circumstances: Katoa at [17], [19] and see also [40], [62].

11    That is not to say, however, that the time limit in s 477(1) may be ignored. It '"represents the legislature's judgment that the welfare of society is best served" by judicial review applications being instituted within a particular period of time, notwithstanding that the enactment of that period may result in a good ground of review being defeated': Katoa at [34]. The purpose of granting the power to extend time is to ensure that the time limit does not undermine the administration of justice: Katoa at [35].

12    Generally, in order for it to be in the interests of the administration of justice to extend time, the applicant will need to provide an explanation for the delay, and the longer the delay the more persuasive the explanation will need to be: Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38] (Wigney J), citing Jess v Scott (1986) 12 FCR 187 at 195. While each case depends on its own facts, it is notable that in Tran, Wigney J called a delay of 18 months 'excessive', and in Jess v Scott the Court said (in the context of an extension of time to appeal) that it would require something very persuasive indeed to justify a grant of leave after a year.

The applicant's submissions in support of an extension of time

13    Plainly, the applicant's delay here is very substantial. In an affidavit he affirmed on 24 May 2023, he seeks to explain the delay as follows (para 24):

(a)    I have had no funds to engage a lawyer to give me advice about the Minister's decision and any options available to me;

(b)    I have not had any legal advice about the Minister's decision and any options available to me; and

(c)    without legal advice, I did not understand that I could seek review of the Minister's decision.

14    In relation to the first of these, the applicant says in his affidavit that he and his immediate family have no funds and, while he has tried to get legal advice about his ongoing detention and the Minister's decision, and has made contact with lawyers on several (unspecified) occasions, he has not had enough money to pay a lawyer for advice. He acknowledges that he had the assistance of Legal Aid when he made representations to the Minister as to why the mandatory cancellation of his visa should be revoked, but he does not recall receiving any further assistance from Legal Aid after the Minister's decision not to revoke, and did not recall receiving any advice that he could seek review of that decision.

15    There is however, evidence in an affidavit of Madisen Scott affirmed on 15 March 2023 and filed on behalf of the Minister that, instead, the applicant applied for a protection visa in March 2017 and, when that was refused, applied for review of that decision to the Administrative Appeals Tribunal and, after that, sought judicial review of the Tribunal's decision in the then Federal Circuit Court. That court dismissed the application in December 2017. He lodged a second protection visa application in August 2020, which was rejected as invalid. He also unsuccessfully sought ministerial intervention on three occasions. He sought review of the decision that is the subject of this proceeding in the Tribunal in April 2023, but that was dismissed because the Tribunal had no jurisdiction to review the decision. Throughout that time, the applicant says, he has received no legal assistance or advice in respect of any of those applications.

16    The applicant now has pro bono legal assistance. As well as the matters just mentioned, his counsel points to the fact that he is an elderly man of declining health for whom English is his second language. On the applicant's own evidence he learned English at primary school in Sierra Leone and speaks it 'relatively fluently', but his ability to read and write in English is 'basic'.

17    As for his health, he has adduced evidence that while in immigration detention he has had chronic obstructive pulmonary disease with chronic asthma, high blood pressure, an unspecified 'severe respiratory illness' and arthritis, as well as a hip replacement and knee replacement surgeries and cataract surgery to his right eye. Before that surgery he was totally blind in that eye which made it difficult to read. That is the only evidence before this Court of any conditions that might have inhibited his ability to apply for judicial review over the course of the last six years. There is no suggestion that he suffers from any cognitive impairment. He made no submission that his health issues were such as to make it in the interests of justice to grant an extension of time because, otherwise, a seriously unwell person may be returned to Sierra Leone on the basis of a legally ineffective decision: cf. Young (by his litigation representative Price) v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 292 at [20]-[21].

18    The applicant also submits that the Minister will suffer no prejudice if an extension of time is granted, and that the prospects of success of the proposed grounds of review are sufficient to warrant full consideration on the merits, in view of the serious consequences at stake for the applicant.

The adequacy of the explanation for the delay

19    The Minister submits that the delay is extraordinary and the explanation for it inadequate. The Minister cites a number of decisions which, he submits, stand for the propositions that a lack of legal advice, an alleged failure of previous legal representatives to advise an applicant properly, impecuniosity and language difficulties are not sufficient excuses.

20    With respect, most of the cases cited do not stand for those propositions, certainly not as blanket propositions. It would be surprising if they did; after all, the discretion to extend time is broad and unfettered: Katoa at [12], [32] and see also [39]. For the most part the passages on which the Minister relies are, rather, commentary by judges on the specific fact situations before them.

21    Nevertheless, I accept that nothing in the applicant's explanation takes the case out of the ordinary run of circumstances, where persons in his position often find themselves lacking the resources and understanding to commence the appropriate proceedings. Generally, that will not be enough to make it in the interests of the administration of justice to grant an extension. Putting it another way, the legislature can be taken to have contemplated that cases of this kind will often fall foul of the 35 day time limit and, generally (but not always), some further feature will be necessary in order for it to be in the interests of the administration of justice to extend time on the basis of such matters, at least where the extension sought is substantial. There is no such further feature that warrants an extension of time being granted in this case.

22    Further, the applicant has demonstrated a capacity to commence judicial review proceedings, as described above. He appears to have been capable of prosecuting an application for judicial review to its conclusion in the Federal Circuit Court (albeit an unsuccessful conclusion). He explains this by saying that he had assistance in preparing the application from others in immigration detention. Yet he gives no explanation of why, if he was able to obtain that assistance in relation to his protection visa application, he did not obtain it in relation to the refusal to revoke the mandatory cancellation of his visa. Nor is there any explanation of how he came to be capable of commencing this proceeding when his removal from Australia became imminent. All this militates against concluding that the undoubted obstacles in his way were sufficient to explain a delay of over six years.

23    In summary, then, I do not find the applicant's explanations for what is, on any view, a very long period of delay to be persuasive.

Prejudice

24    On prejudice, the Minister submits that there is prejudice to the Minister because of the public interest in the timely and effective disposal of litigation in public law, where delays in dealing with visas are to be avoided if possible. I accept that is a factor that should be given weight. Perhaps it is unlikely to be determinative in many cases, but it is relevant. It is also trite that a mere absence of prejudice is not sufficient to justify an extension of time: Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 349. The matter of prejudice to the Minister does not weight in the applicant's favour.

Merits of the proposed application

25    It is appropriate to assess the merits of the proposed application at an impressionistic or threshold level, so that it is not necessary to describe the entire reasoning process undertaken by the Minister in reaching the decision not to revoke the cancellation of the applicant's visa. It is enough to assess, at that level, the criticism the applicant makes of it. It is helpful to set out the applicant's proposed grounds of review in full:

1.    The Respondent committed jurisdictional error by engaging in a process of reasoning that was legally unreasonable, and a fact-finding process that was so unreasonable, illogical, meagre, insufficient, or formulaic, that the required task was not discharged, in connection with the following findings in relation to whether there was another reason to revoke the cancellation of the Applicant's visa for the purposes of s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth):

a.    at [85] that 'there is a likelihood that [the Applicant] may re-offend';

b.    at [92] that 'the Australian community could be exposed to great harm should [the Applicant] reoffend in a similar fashion' and 'I could not rule out the possibility of further offending by [the Applicant]'; and

c.    at [94] that the Applicant 'represents an unacceptable risk of harm to the Australian community' and

in circumstances where the material before the Respondent included that:

i.    in sentencing the Applicant for his convictions in 2011, her Honour Judge Gaynor found that the Applicant's 'prospects of rehabilitation were fair' and it was not her view that the Applicant 'posed a particularly high threat to other children';

ii.    in sentencing the Applicant for those convictions, her Honour Judge Gaynor described the Applicant's previous criminal convictions as 'minor offences';

iii.    the Applicant was declared a serious sexual offender and placed on the Register of Sex Offenders under the Sex Offenders Registration Act 2004 (Vic) with the consequence that he would be subject to restrictions on his contact with minor children in the community; and

iv.    the Applicant had completed his sentence with reports that he was a consistently well behaved prisoner and he had completed programs while in prison.

2.    The Respondent committed jurisdictional error by engaging in a process of reasoning that was legally unreasonable, and a fact-finding process that was so unreasonable, illogical, meagre, insufficient, or formulaic, that the required task was not discharged, in connection with the following finding in relation to whether there was another reason to revoke the cancellation of the Applicant's visa for the purposes of s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth):

a.    at [94] that 'the protection of the Australian community outweighed the best interests of his minor children and grandchildren as a primary consideration and other considerations',

in circumstances where:

i.    the material relevant in assessing the likelihood of the Applicant engaging in further criminal serious conduct includes the material referred to in ground 1;

ii.    the Respondent made findings that the best interests of the Applicant's minor children and grandchildren would be served by the revocation of the mandatory cancellation decision [26], [29], and [89]; and

iii.    the Respondent made findings as to other considerations that were favourable to revocation at [47], [50], [53], [56], [60], and [90], including the strength, nature and duration of the Applicant's ties to Australia, the absence of any family support in Sierra Leone and the Applicant's age and ongoing health issues.

26    The applicant's criticisms focussed on the following passage from the Minister's reasons for decision (MD), which was part of a section under a main heading, 'Protecting the Australian community':

Risk to the Australian community

76.    In relation to mitigating circumstances, I note that the sentencing Judge acknowledged that [the applicant] was drunk at the time of the offending and that 'it may well have been that alcohol had quite a part to play' in the offending.

77.    In relation to rehabilitation, the sentencing Judge expressed the view that [the applicant]'s prospects of rehabilitation were 'fair' and that she did not believe he posed 'a particularly high threat to other children'. Her reasons for forming this opinion include [the applicant]'s age, his family responsibilities, the support he continued to have from his family and that other persons in the community continue to hold him and his family in regard.

78.    [The applicant] has advised that he completed programs in prison and is now confident that he will not re-offend. Instead he hopes to remain in Australia and help his family.

79.    It is submitted that [the applicant] was a model prisoner with consistently good reports of his behaviour in prison.

80.    [The applicant]'s legal representative has submitted that there is no evidence that [the applicant] would be an unacceptable risk of re-offending in the future. Factors to be considered in this regard include his age, family responsibilities, and the support he has from family and friends. It is submitted that the combination of these factors make it unlikely he would reoffend in a similar way in the future.

81.    I note that many of the factors submitted as being protective against future offending existed at the time of the offending.

82.    I note that [the applicant] has some breaches of judicial orders recorded on his National Police Certificate. These are a breach of a suspended sentence in 1996 and fail to answer bail granted, also in 1996. I find that these breaches, albeit dated, demonstrate a lack of respect for judicial authority.

83.    I note also that [the applicant] has been declared a serious sexual offender and that the sentencing Judge considered that it was likely that permanent orders would be made by the Children's Court of Victoria in relation to his children. I consider that these factors may serve to minimise his unsupervised contact with minor children.

84.    I have taken into account [the applicant]'s claims regarding program attendance, good behaviour in prison and rehabilitation, the support he has in the community and the Judge's view that he had 'fair' prospects of rehabilitation and did not pose 'a particularly high threat to other children'. I have also taken into account the protective factors against future sexual offending afforded by restrictions placed on [the applicant] as a result of the declaration that he is a serious sexual offender and the restrictions imposed on his contact with minor children.

85.    Notwithstanding these factors, I note that many of the protective factors advanced in support of rehabilitation, including his family and community support and age, existed at the time of his offending. I note also his past breaches of judicial orders, although I acknowledge that these are dated. For these reasons I find there is a likelihood that he may re-offend. I have also given weight to the significant adverse and long term impact of his offending on the victim and find that any future similar offending could result in significant psychological or physical harm to the Australian community.

CONCLUSION

86.    I considered all relevant matters including (1) an assessment of whether the person has made representations in accordance with the invitation for the purposes of s501CA(4)(a); (2) an assessment of whether I am satisfied that the person passes the character test (as defined by section 501) for the purposes of s501CA(4)(b)(i); (3) an assessment of whether I am satisfied that there is another reason why the original decision should be revoked for the purposes of s501CA(4)(b)(ii); and (4) all evidence available to me, including evidence provided by, or on behalf of, [the applicant].

87.    I concluded [the applicant] has made representations in accordance with the invitation.

88.    I am not satisfied that [the applicant] passes the character test (as defined by section 501).

89.    In considering whether, in light of [the applicant]'s representations, I was satisfied that there is another reason why the original cancellation decision should be revoked, I gave primary consideration to the best interests of [the applicant]'s children and grandchildren and have found that their best interests would be served by the revocation of the mandatory visa cancellation decision.

90.    In addition, I have considered the length of time [the applicant] has made a positive contribution to the Australian community, some 35 years, and the consequences of my decision for his other family members.

91.    On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crimes committed by [the applicant], which were sexual offences against a minor child, a vulnerable member of the community. I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia.

92.    Further, I find that the Australian community could be exposed to great harm should [the applicant] re-offend in a similar fashion. I could not rule out the possibility of further offending by [the applicant].

93.    I am cognisant that where great harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the decision to cancel the visa.

94.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that [the applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his minor children and grandchildren as a primary consideration, and any other considerations as described above. These include his lengthy residence and bonds, the needs of his partner who suffers from an intellectual disability, his employment, community activities, and familial ties to Australia, and the hardship [the applicant], his family and social networks will endure in the event the original decision is not revoked.

95.    Having given full consideration to all of these matters, I am not satisfied, for the purposes [of] s501CA(4)(b)(ii), that there is another reason why the original decision to cancel [the applicant]'s visa should be revoked. Accordingly, I have decided not to revoke the original decision to cancel [the applicant]'s Class BF transitional (permanent) visa.

Principles

27    The applicant's criticisms are framed in terms that the Minister's reasoning was legally unreasonable because it lacked an evident and intelligible justification. While there was some debate in written submissions about the standard that applied, it became common ground at the hearing that jurisdictional error may occur when either the outcome of the exercise of a statutory power was one that no rational or logical decision-maker could reach, or because it was not open to the Minister to engage in the process of reasoning in which he did engage and to make the findings he did make on the material before him: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [133]; Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [34]-[35]. Where reasons are given, the Court ordinarily looks to those reasons to assess the reasonableness of the exercise of power: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44]-[47].

28    Nevertheless, the characterisation of a decision as legally unreasonable because of illogicality or irrationality is not easily made, and not every lapse of logic will give rise to jurisdictional error: SZMDS at [130]; Djokovic at [34]. It is not sufficient that the court disagrees with the basis of the fact finding or associated reasoning, or even strongly or emphatically disagrees; it must be shown that the findings were not rationally open to be made: CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 at [65] (Moshinsky, O'Bryan and Cheeseman JJ) and the cases cited there.

29    It was also common ground that a finding of fact on a key matter can lead to jurisdictional error if there was no probative basis for it in the materials before the decision maker. In Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595 at [48] Mortimer J (Moshinsky J agreeing) endorsed the following statement of principle made in submissions:

Save that the reviewing court must be satisfied that the evidence relied upon achieves at least a threshold probative value, the inquiry is not otherwise concerned with ascertaining the sufficiency or quality (including cogency) of the evidence. The ground necessarily invites and requires a comparison between the material available to the decision-maker and the conclusions drawn from that material.

30    The applicant also alleges that the fact finding process the Minister undertook was so unreasonable or illogical, or the consideration he gave to the representations so meagre, insufficient, or formulaic, that the required statutory task was not discharged. He relies on Ba v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1271 at [19], where Colvin J said (at [19]):

In order to demonstrate jurisdictional error as to performance of the fact-finding aspects of the deliberative task entrusted to the Tribunal, it is necessary to demonstrate some respect in which the way in which the fact finding process was undertaken exceeded the scope of that decision-making authority (or was a failure to perform the required decision-making task). For example, it may be claimed that the fact finding process was unreasonable or illogical or guided by a misapprehension of the law to be applied or that the consideration was so meagre or insufficient or formulaic that the required task had not been discharged. …

Proposed ground 1

31    In order to understand the first proposed ground, it is relevant that the offences which led to the imprisonment of the applicant and the revocation of his visa took place in a single incident in 2010, when the applicant sexually assaulted a 12-year-old friend of his daughter, when she was sleeping over at the applicant's house. The Minister found, and the applicant does not dispute, that the sexual offences were very serious. The applicant nevertheless seeks to impugn the Minister's reasoning as to the likelihood that the applicant would reoffend, and thus the level of risk to the community should he be permitted to stay in Australia.

32    The applicant points to the following matters found in the remarks of the judge who sentenced the applicant for the sexual offences. The offending was opportunistic and occurred in circumstances where the applicant was affected by alcohol; it was of short duration and essentially a single incident, unaccompanied by violence, threats or inducements; the prospects of rehabilitation were fair and the applicant did not pose 'a particularly high threat' to other children; and the offending, while 'extraordinarily serious', fell within the middle range of offending of its type.

33    The applicant had a record of other, lesser offences for which he had been convicted a considerable time before the sexual assaults occurred. The Minister found that the applicant had 'other serious offending, some of it dated' (MD para 75). However, the applicant's chief criticisms were directed at the passage from the Minister's decision that is set out above, specifically:

(1)    The Minister recounts without demur the sentencing judge's assessment of the applicant's rehabilitation prospects as 'fair', and her belief that he did not pose a 'particularly high threat to other children' (MD para 77).

(2)    The Minister also recounts without demur the applicant's statement that he has completed programs in prison and is confident that he will not reoffend, and that he had been a model prisoner (MD paras 78-79).

(3)    The Minister recounted a submission made on the applicant's behalf that there were factors protective against reoffending including his age, family responsibilities and the support he has from family and friends (MD para 80).

(4)    The Minister acknowledged that the applicant had been declared a serious sexual offender and it was likely that permanent orders would be made by the Children's Court of Victoria and that 'these factors may serve to minimise his unsupervised contact with minor children' (MD para 83).

(5)    The only matters that the Minister noted that might be thought to support a finding that he is likely to reoffend are that many of the protective factors existed at the time of his offending (MD para 81) and that he has some breaches of judicial orders recorded on his National Police Certificate from 1996, and 'these breaches, albeit dated, demonstrate a lack of respect for judicial authority' (MD para 82).

(6)    However, despite the preponderance of factors that minimise the applicant's risk of reoffending, and the Minister's acknowledgement of many of those factors at MD paragraph 84, the Minister concludes at paragraph 85 that there is a 'likelihood' that the applicant may reoffend. This is based, according to the applicant, solely on the findings that many of the protective factors existed at the time of the sexual offences, and on the breach of judicial orders in the somewhat distant past.

(7)    In addition, the Minister's reasoning does not engage with further rehabilitative or deterrent effect of the fact that the applicant has been punished for his offending by a sentence of several years in prison.

34    All this, the applicant submits, is illogical and irrational. His submissions in that regard relied to a significant extent on giving a meaning to the expression used by the Minister that 'there is a likelihood that he may re-offend' which elevates it above a mere finding that there is a chance of reoffending that cannot be ruled out. It was the stronger nature of the finding that was said to be unsupportable on the basis of the limited material enlisted in MD paragraphs 81, 82 and 85, set out at [25] above.

35    This case, while reasonably arguable, is not compelling. It breaks the Minister's reasoning up into pieces, with a danger that any given piece is taken out of context, and it also fails to have regard to the wider context in which the relevant passage sits. That wider context is that the applicant had been convicted of an opportunistic and serious sexual offence against a 12-year-old girl. While that was not part of a pattern of offending, the fact that it had happened once, when the opportunity arose, provided rational support, all things being equal, for a finding that it may happen again, if the opportunity arose again.

36    Of course, all things were not equal, as they rarely, if ever, are. That is where the Minister's consideration of rehabilitation, protective factors such as age and familial support, and the likely Children's Court orders (apparently about unsupervised conduct with children) become relevant. It is in relation to those matters that I am concerned that the applicant's argument may impermissibly dissect the Minister's reasons, and may in particular sever MD paragraph 85 from elsewhere in the reasons, especially paragraph 84. It is trite that the reasons for administrative decisions are to be read fairly as a whole and without an eye keenly attuned to the detection of error.

37    When the Minister's reasons here are read that way, there is much to be said for this interpretation: paragraph 84 acknowledges and gives weight to the applicant's prospects of rehabilitation, to the sentencing judge's view of the risk of reoffending, and to the likely protective effects of the ongoing restrictions on his access to children; but paragraph 85 is a finding that, on an overall assessment, the probability that the applicant would reoffend was unacceptable. That overall assessment included assigning less weight to some of the protective factors, because they were present when the applicant committed the sexual offences, and less weight to the protective effect of the restrictions that will be placed on his future contact with children, because he has breached judicial orders in the past.

38    I note that this understanding of what the Minister meant by 'likelihood' is consistent with the interpretation of similar wording which Mortimer J gave in Splendido: see [66]-[69]. In this case that interpretation finds further support in the last sentence of MD paragraph 85, where the Minister refers to the significant adverse and long-term effect of the offending on the victim, suggesting that he is not just assessing the probability of reoffending, but the gravity of the consequences and thus making an overall evaluation of the risk. It also finds support in MD paragraphs 91-93. And, as counsel for the Minister pointed out, MD paragraphs 84 and 85 are explicitly linked by the opening words to paragraph 85: 'Notwithstanding these factors'. These matters are overlooked in the applicant's submission that the Minister's conclusion, that there was a likelihood that he may reoffend, was based solely on the findings that many of the protective factors existed at the time of offending and that he had breached judicial orders in the past (see [33(6)] above).

39    On its face the course of reasoning thus explained is an intelligible one, and it has resulted in a conclusion that was open to be made on the material. It may be that the Minister could have articulated his reasoning more fulsomely, but inadequacy of reasons is not asserted as a basis of jurisdictional error.

40    The applicant relied on two Full Court cases in particular: Splendido and CKL21. However as is notorious, and as pointed out in CKL21 at [75], the process of judicial review is fact dependent, especially when the ground is legal unreasonableness or irrationality. In my view, both cases are distinguishable.

41    As to Splendido, in the assessment of the primary judge, which Mortimer J endorsed on appeal, it was an 'extreme and rare case': Splendido at [96]. For it was a case where the Assistant Minister had determined that Mr Splendido was an unacceptable risk without any material before him as to the circumstances of the offending. All he had was a bare criminal record, which stated convictions, dates and the offences in question. There were no sentencing remarks. It was in that context that the primary judge and the Full Court held that there was no probative material before the Assistant Minister to support his finding as to risk.

42    Here, of course, the Minister did have the sentencing remarks before him in relation to the offending that led to the cancellation of the applicant's visa. While there was no pattern of offending, I doubt that a Court, confined to its proper function on judicial review, should say that material indicating the circumstances in which a person has committed a serious offence in the past does not provide a probative basis to conclude that the person may offend in a similar way in the future. All that is needed is 'some information or material' which gives the decision-maker some basis for making the qualitative assessment of the strength or seriousness of any risk that the applicant would engage in further offending: Splendido at [82]. If the Court were standing in the shoes of the original decision maker, it may well exercise caution in using past behaviour to predict future behaviour. But that is not the Court's proper function in this case. See the discussion in MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1161 at [63]-[68].

43    The reasoning in Splendido does provide a basis to criticise the Minister's use of the applicant's record of historical offending, as that too was a bare criminal record without information about the surrounding circumstances. But if that is a defect in the logic of the decision, I doubt that it is one that gives rise to jurisdictional error. It contributed to, but did not determine, the conclusion the Minister reached on the risk of the applicant committing similar sexual offences in the future.

44    When his decision is read fairly, the Minister was approaching the question on the footing that a serious offence had been committed, and there was a probability, that is a chance, that it may be committed again in the future. Whether that did provide a sufficient basis for the conclusion was an evaluative factual question which the Minister decided, rightly or wrongly, within his jurisdiction. As Mortimer J observed in Splendido at [92]:

A person with a single conviction may have a greater risk of re-offending than a person with a string of convictions over a long period of time - all will depend on an assessment of the factual circumstances of the individual and her or his offending, and an assessment of whether she or he is genuinely rehabilitated and no longer exposed to the circumstantial factors which precipitated the previous offending. This is why the sentencing process, where assessment of future risk is traditionally located, is so complex.

45    In the present context, assessing the factual circumstances here was a matter for the Minister, and there are no strong reasons for thinking that his assessment will be found to be reviewable by the Court.

46    CKL21 has more similarity to the present matter because it was a case where the appellant had been found guilty of a one-off but very serious offence (murder). But it too is distinguishable because there was an abundance of evidence, including expert evidence, to indicate that the risk of the appellant reoffending in a similarly serious way was minimal, and no probative evidence to the contrary. Here, the evidence that the applicant would not reoffend was not nearly so strong, and there was nothing to say that the risk was minimal. The sentencing judge's remarks, that the risk that the applicant posed to other children was not 'particularly high' and that his prospects of rehabilitation were 'fair', do not go so far, and the other material about rehabilitation on which the applicant relies was comprised of his own representations rather than independent expert opinion. His apparently model behaviour in prison did not necessarily provide a good guide to the way he would behave out of prison. And the fact that some of the protective factors on which the applicant relied were present at the time of his serious offending was a relevant matter for the Minister to have taken into account.

47    The applicant also relied on Logan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1068; (2020) 278 FCR 419. But, once again, that case is distinguishable. There, the Minister accepted that Ms Logan had been assessed as low risk of re-offending, noted that she was to be granted parole and that this was a strong indication that the Parole Board considered her to be a low likelihood of reoffending, and acknowledged that this weighed heavily in favour of a decision to revoke. And yet he had found her to be an unacceptable risk of reoffending, with no probative basis disclosed in his reasons as to why, and no finding by reference to current circumstances as to whether she posed a risk. Those errors in the Minister's decision are not present in this case.

48    For the above reasons I consider that while the first proposed ground is reasonably arguable, it is not compelling.

Proposed ground 2

49    The essence of the criticism of the Minister's reasoning under proposed ground 2 is that, after he made findings as to a number of considerations which weighed in favour of revoking the cancellation of the visa, when he then found that these were outweighed by the interests of protecting the Australian community, the reasoning was so meagre, insufficient or formulaic that he failed to discharge the statutory task.

50    With respect, I doubt this criticism does justice to the Minister's reasons in this case. The passage particularly relevant to proposed ground 2 is at MD paragraphs 89-94, set out at [25] above. The Minister does not just blandly state that the protection of the Australian community outweighs the factors which support revocation. He first describes those factors in a manner that recaps and refers back to the more detailed discussion of them that appears earlier in his reasons. He also refers back to some of those factors in paragraph 94, including reference to the particular needs of the applicant's intellectually disabled partner. But at paragraphs 91 to 93, the Minister explains why he chooses to place such weight on the seriousness of the sexual offences the applicant committed, and the harm that might be occasioned should he reoffend.

51    This suggests that the Minister approached the evaluative task before him in the appropriate manner. He does not appear to have approached it in a meagre or formulaic way or, for that matter, in the pseudo-mathematical way recently criticised in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [35], [38]. Whether certain factors did outweigh other factors was quintessentially for the Minister to decide. On its face the reasoning he expressed here does not appear to be so meagre, insufficient or formulaic as to mean that he did not discharge his statutory task. Why certain factors outweigh others is inherently difficult to break down to discrete logical steps. It does not call for calculus or syllogistic reasoning.

52    The applicant relied in particular on Guttridge v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 229. Once again, in a fact-intensive area such as this, previously decided cases may be of little assistance. I consider that Guttridge is not especially helpful here, because it too was an extreme case where the Tribunal failed to make findings of fact about the impact on two severely disabled boys of separation from their father, and the impact on the mother who would be left to care for them. This is a different case. The applicant pointed to no specific matter of high and obvious importance that was given little or no attention in the reasons.

53    On balance, in my opinion this proposed ground is arguable but not strong. For completeness I note that it relied, in part, on what was said to be the deficiencies in the Minister's reasoning exposed by proposed ground 1, and so its fortunes depend in part on the fortunes of that ground.

Conclusion

54    The applicant seeks an extremely long extension of time, more than six years, with no good explanation as to why he took so long to make the application. It can be inferred that it was only his imminent removal from Australia that prompted him to approach the Court.

55    In my view, it could only be in the interests of the administration of justice in this case to grant him that extension if he could point to a clear injustice attendant on the Minister's decision in 2016. The proposed grounds he has raised, while arguable, are not compelling, and do not identify any clear injustice.

56    The time limit in s 477A represents the legislature's judgement as to where the interests of society lie, in terms of balancing finality of administrative decisions that are reviewable by this Court and the right of persons to seek judicial review of those decisions. An important aspect of the administration of justice by this Court is to give effect to judgements of that kind, as made by the Parliament and expressed in the legislation it passes. It would be contrary to the interests of the administration of justice to overlook the time limit on the basis of an insufficient explanation for a very long delay, merely because the applicant has a reasonably arguable case. If the Court were to do so regularly, it would render the time limit nugatory.

57    The application for an extension of time will be refused. The application for leave to amend the originating application therefore falls away. Costs will follow the event.

Associate:

Dated:    27 September 2023