Federal Court of Australia

DAQ22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1557

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to bring the application is refused.

2.    The applicant is to pay the respondent’s costs of and incidental to the application on a lump sum basis to be assessed by a Registrar of the Court if not agreed.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

1    The applicant is a Shia Hazara from Afghanistan who arrived in Australia as an unauthorised maritime arrival on 23 September 2011 and was granted a Protection (Class XA) (Subclass 866) visa on 24 January 2012.

2    On 23 November 2015, after trial by judge alone, the Supreme Court of South Australia found the applicant guilty of attempted murder of his former girlfriend on 8 October 2014. In sentencing remarks, the sentencing judge observed that the offending “comprised domestic violence”. On 18 December 2015, the applicant was sentenced to a term of 11 years and six months imprisonment with a non-parole period of 6 years.

3    On 15 May 2020, the applicant was informed that a delegate of the Minister had cancelled the applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth). On 17 May 2020, the applicant made representations to the respondent for the revocation of the mandatory cancellation of his visa.

4    On 18 March 2021, an international treaties obligations assessment was conducted, in which an officer of the Department of Home Affairs concluded that Australia owed non-refoulement obligations in respect of the applicant.

5    On 17 December 2021, the Minister, acting personally, decided not to revoke the cancellation of the applicant’s visa.

6    It is from that decision that the applicant now seeks review pursuant to s 476A of the Act. The originating application was filed out of time by 7 months and 12 days. The applicant seeks an extension of time under r 31.23 of the Federal Court Rules 2011 (Cth) (FCR) and s 477A of the Act within which to bring this application.

7    The applicant filed and served an amended originating application on 27 April 2023. The amended originating application specifies two grounds of review:

(1)    The respondent failed to perform his statutory task or failed to act on a correct application of the law in that he found that there was a reason to revoke the cancellation of the applicant’s protection visa, namely that he would be indefinitely detained without revocation and his prospects of removal to liberty were “poor” – but failed to consider whether this, on its own, was sufficient to engage the Minister’s power under s 501CA(4) of the Act (ground one).

(2)    The respondent’s decision was infected by jurisdictional error in that it was legally unreasonable and/or lacking in proportion when the respondent concluded that “significant weight in favour of non-revocation” arose from “a low likelihood” that the applicant would re-offend, because if he did, it “may” result in harm to members of the community (ground two).

8    The issues that arise in this matter are:

(i)    Whether the applicant should be granted an extension of time within which to bring this application; and

(ii)    If so, whether the respondent fell into jurisdictional error on one or both of the claimed grounds.

9    It is for the reasons that follow that the applicant’s application for an extension of time is refused.

Extension of time

10    Section 477A(2) of the Act provides:

477A Time limits on applications to the Federal Court

…

(2)    The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

11    The power in s 477A is broad. It provides this Court with power, exercisable in the Court’s discretion, to extend time within which an application to the Court from a migration decision may be made. That power is unfettered, save for the requirement that there be a written application and that the Court be satisfied that it is “in the interests of the administration of justice” to extend time: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 96 ALJR 819 at [12] (Kiefel CJ, Gageler Keane and Gleeson JJ).

12    In considering whether it is in the interests of the administration of justice to grant an extension of time, the merits of the proposed application are an important consideration. Sometimes it will be appropriate to assess those merits at an impressionistic level, on other occasions, the circumstances may be such as to require a more detailed examination of the merits. The broad power in s 477A does not prevent the latter course: Katoa at [18].

13    The parties submitted that in this matter it was appropriate for the Court to adopt the approach of hearing and determining the extension of time application and the merits of the substantive application at the one time. Given the length of the delay and the grounds relied upon, I accepted that submission and proceeded to hear both the substantive application and the application for an extension of time.

Minister’s Reasons (Reasons)

14    Since the applicant had been sentenced to a term of imprisonment of at least 12 months, the applicant had a substantial criminal record within the meaning of s 501(7)(c) of the Act. Accordingly, it was common ground before the Minister that the applicant did not satisfy the character test because of the operation of s 501(6)(a) of the Act.

Direction 90 considerations

15    As the applicant had not passed the character test, the Minister considered whether there was another reason why the original decision to cancel the applicant’s visa should be revoked: s 501CA(4)(b)(ii) of the Act. In so doing, the Minister had regard to a written direction issued pursuant to s 499(1) of the Act titled, “Direction 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”. (Direction 90).

16    Since the respondent had elected to consider the applicant’s application for revocation of the cancellation decision personally, the respondent was not bound to follow Direction 90 but chose to do so.

17    In following Direction 90, the respondent considered first the Primary Considerations set out in paragraph 8 of that Direction.

Primary Consideration 1 – Protection of the Australian community: Reasons [13]-[67]

18    In considering the nature and seriousness of the applicant’s conduct, the respondent referred to the sentencing remarks. The respondent found crimes of a violent nature against women and acts of family violence are viewed very seriously regardless of the sentence imposed, and that the lengthy sentence of imprisonment of 11 years and six months is an indication of the very serious nature of the offending.

19    The respondent also found that the fact the offence was committed against a woman with whom the applicant had previously been in a relationship, and that the applicant had been coercing and controlling during the course of the relationship with the victim, added to the seriousness of the offending.

20    The respondent acknowledged the applicant’s remorse for his actions, and that he has shown insight into his actions. The respondent also took into account that the applicant had participated in rehabilitation programmes whilst in prison, that he had taken positive steps towards rehabilitation, and that the applicant has regular contact and visits from members of the community, some of whom have also provided letters of support for him.

21    The respondent acknowledged that the applicant had no prior history of offending, that his attempt on the victim’s life might not have been premeditated, and that he called for medical assistance and attempted to revive the victim. However, the respondent did not find any of those factors detracted from the serious nature of the respondent’s offending.

22    The respondent found at Reasons [67]:

… the nature of [the applicant’s] conduct is very serious. I have further found that any conduct that involves attempted murder has the potential to cause physical and psychological injury to members of the Australian community. On balance, I consider there to be a low likelihood that [the applicant] will reoffend. Nevertheless, I consider that, should [the applicant] engage in similar conduct again it may result in psychological and physical harm to members of the community. I have given this consideration significant weight in favour of non-revocation.

Primary Consideration 2 - Family violence committed by the applicant: Reasons [68]-[100]

23    The respondent considered that the applicant’s conduct constituted family violence as defined in Direction 90 and was “… clearly threatening, controlling, coercive, fear inducing and violent”: Reasons [77], [81]. The respondent summarised part of the sentencing remarks: Reasons [71]-[76]:

The sentencing remarks of the Supreme Court of South Australia dated 18 December 2015 indicate that [the applicant] was 19 years old at the time he offended on 8 October 2014, by attempting to choke the victim, [name omitted] with her scarf. The sentencing remarks further indicate that [the applicant] had been in a relationship with [name omitted]. The Judge had no doubt that in the initial stages of their relationship both [the applicant] and his victim were happy however noted that [the applicant] “began to be directive and controlling in the relationship, telling her things like what she could wear and who she could speak to.” …

The sentencing remarks of the court further indicate that in the months leading up to his offending, [the applicant] became desperate and depressed as his relationship with the victim “had not been going well”. Although [name omitted] had told [the applicant] that the relationship was over, he made numerous attempts to resume the relationship including contacting [name omitted] at her school, pretending to be her brother. He also threatened to tell [name omitted] mother about their relationship…

I note that [the applicant] followed through with his threat on 22 August 2014 and went to [name omitted] house uninvited and spoke to her mother. He told [name omitted] mother that he and [name omitted] had been sleeping together. When asked to leave, he refused to do so and as noted by the Judge, “Undeterred you remained at the premises until the police arrived.” He left after the police asked him to leave …

According to the sentencing remarks of 18 December 2015, [the applicant] sent [name omitted] numerous text messages when she commenced work experience at a shop and told her that she should not work there as he, “did not approve”. He also spoke to the owner of the shop …

The sentencing remarks indicate that on the day of his offending, [the applicant] met [name omitted], “got her into the car and drove her to a back street” where he tried to convince her to resume their relationship. When [name omitted] refused, [the applicant] became violent towards her and when she resisted, he placed a box cutter on her throat …

I note the Judge’s remark, “Chillingly having overcome her resistance you looked at her and said ‘I’m really sorry I’m doing this’ and then you pulled her scarf so tight that she lost consciousness.” [The applicant] then strangled her further with his hands as a result of which [name omitted] suffered significant bruising around her neck and face and conjunctival bleeding in her eyes.

24    In considering the seriousness of the family violence that occurred, the respondent acknowledged that while the applicant has only a single conviction: Reasons [84], the respondent noted the sentencing remarks and that there was a trend of increasing seriousness in the family violence in the period leading up to the applicant’s arrest.

25    The respondent concluded that despite the applicant’s limited history of offending in Australia, since the applicant’s “offending conduct constituted serious violence against a woman - his ex-partner, and involved the use of a weapon (a box cutter)”, the offending was very serious: Reasons [100]. The respondent formed the view that Primary Consideration 2 weighed significantly against the revocation cancellation of the applicant’s visa.

Primary Consideration 3 – Best interests of minor children: Reasons [101]-[102]

26    The respondent found that there was no information before him that indicated any child in Australia would be affected by a non-revocation decision.

Primary Consideration 4 - The expectations of the Australian community: Reasons [103]-[108]

27    The respondent noted: Reasons [106], that as he had found that the applicant’s conduct constituted family violence, the community expectation described in Direction 90 applied to the applicant.

28    The respondent accepted: Reasons [108], that while certain members of the community may expect that the applicant deserves a second chance, the respondent was of the view that the broader Australian community’s general expectations about non-citizens as articulated in Direction 90 applied. The respondent formed the view that Primary Consideration 4 weighed significantly against the revocation of the cancellation of the visa.

Other Considerations

29    The respondent noted it was necessary to take into account the “other considerations” described in Direction 90.

International non-refoulement obligations

30    The respondent accepted that the applicant holds a well-founded fear of being tortured or killed for reasons of his religion and ethnicity should he return to Afghanistan and accepted that the applicant is a person to whom Australia has non-refoulement obligations. The respondent noted that would be a factor in favour of revocation of the applicant’s visa, however the protection finding made on 18 March 2021 means that removal of the applicant to Afghanistan is neither required nor authorised by s 198: s 197C(3), Reasons [121].

Extent of impediments if removed to Afghanistan

31    The respondent noted that the applicant stated that he has been diagnosed with Crohn’s disease and was concerned about the quality of care he would receive in Afghanistan fearing that as a Shia Hazara he will be “rated as a lower-class citizen” and that the applicant did not like his chances of receiving proper care.

32    Whilst noting that there was no information to support the applicant’s claim that he would be denied access to health care that is ordinarily available to other citizens of Afghanistan, nonetheless the respondent accepted that the quality of medical care the applicant may receive in Afghanistan is unlikely to be of a similar standard to that which he had been receiving in Australia such that this may result in significant hardship.

Language and cultural barriers

33    The respondent noted that the applicant had made no submissions in relation to any hardship he may face due to language and/or cultural reasons. The respondent found that given his familiarity with the language and culture of Afghanistan, any difficulties the applicant might face would be somewhat reduced: Reasons [135].

Social, medical and/or economic support available in Afghanistan

34    The respondent noted that the applicant had no family support in Afghanistan and his mother, two sisters, and a brother currently reside in Pakistan. The respondent found that the applicant’s various educational and trade qualifications gained during imprisonment would assist him in securing gainful employment.

35    The respondent found that given the applicant’s health problems, the applicant will experience considerable hardship should he be removed to Afghanistan and that his mental health may deteriorate. The respondent found that non-revocation of the cancellation decision will involve substantial hardship for the applicant.

36    Nonetheless, given the protection finding, the respondent again noted that given ss 197C(3) and 198 of the Act did not require or authorise the removal of the applicant to Afghanistan such that these impediments will not eventuate, “… as a result of the respondent’s decision to refuse the applicant’s visa application”.

37    The passage in quotes directly above is clearly mistaken as the decision is concerned with whether the cancellation of the applicant’s visa should be revoked and not the refusal of a visa application. This is a single error within the Reasons and in the circumstances nothing turns on that misdescription.

Impact on victims

38    The respondent referred to the sentencing remarks that indicate that the victim “continued to suffer emotionally, was overwhelmed with feelings of fear and suffered from nightmares”. The respondent found that “revocation in relation to [the applicant’s] visa would cause the victim considerable ongoing distress, unease and fear of future harm”: Reasons [137]. The respondent also found that “revocation in relation to [the applicant’s] visa will no doubt result in ongoing anxiety for the victim’s mother who would remain worried about her daughter’s safety”: Reasons [138].

Links to the Australian community

39    The respondent noted that the applicant has no immediate family members in Australia, although he has other ties in the form of close friends and links to the community having lived in Australia for more than 9 years. The respondent recognised the negative effect of non-revocation of the cancellation decision on the applicant’s friends and community members in Australia, although gave less weight to that consideration as the applicant committed a very serious offence soon after arriving in Australia.

40    The respondent found that the strength, nature and duration of the applicant’s ties to Australia weighed “marginally in favour of a revocation decision”: Reasons [147].

Legal consequences of a non-revocation decision

41    In addition to the “other considerations” specified in Direction 90, the respondent also took into account the legal consequences of a decision not to revoke the cancellation of the applicant’s visa — those consequences being: Reasons [149], that as an unlawful non-citizen, the applicant must continue to be detained in accordance with ss 189 and 196 of the Act, until removed from Australia or granted a visa but that since a protection finding had been made in the course of considering the protection visa, s 198 would not require or authorise removal to Afghanistan except in certain circumstances which were not presently relevant. As a result, the respondent was aware that the applicant faced the prospect of immigration detention for an indefinite period.

42    The respondent found that the prospect of indefinite detention, which the applicant considered as a second punishment, weighed in favour of revocation of the cancellation of the applicant’s visa. The respondent was mindful that the non-revocation of the cancellation decision would limit the applicant’s ability to apply for a further visa, however the respondent also acknowledged that the Minister administering the Act would still have a personal, non-compellable power to grant another visa to the applicant under s 195A of the Act if the Minister thinks that it is in the public interest to do so.

43    The respondent ultimately found: Reasons [166], [167] that on balance, the factors weighing against revocation of the visa cancellation outweighed the factors in favour of revocation such that the respondent was not satisfied that there is another reason why the decision to cancel the applicant’s protection visa should be revoked.

44    Since the respondent was not satisfied that the applicant passed the character test, nor that there was another reason why the cancellation decision should be revoked, the respondent considered the power under s 501CA(4) to revoke the cancellation decision was not enlivened and the visa remained cancelled.

The parties’ submissions and consideration

Substantive appeal

Ground one

45    The applicant submits that the respondent failed to perform his statutory task or failed to act on a correct application of the law when he found that the prospect of indefinite detention was a reason to revoke the cancellation of the applicant’s visa but failed to consider whether this, on its own, was sufficient to engage the respondent’s power under s 501CA(4) of the Act.

46    The applicant submits the respondent did not acknowledge this possibility and declined to revoke the cancellation because he misunderstood his statutory task as requiring a balancing or weighing of multiple reasons both for and against revocation.

47    The applicant submits that the source of the respondent’s misunderstanding is likely to have been his own direction under s 499, where that direction required such a weighing or balancing.

48    The applicant submits that while a delegate or Tribunal exercising power under s 501CA(4) is limited by compliance with the method set out in Direction 90, the respondent is not. The applicant submits that such a limit is not apparent from the text of the Act as it applied to the respondent, and as a result he failed to perform his statutory task.

49    Further, or in the alternative, the applicant submits that the Minister erred by making a decision other than on a correct understanding and application of the applicable law. The applicant submitted the correct understanding was that a single reason to revoke the cancellation was sufficient and that if that occurred, it amounted to another reason such that the power to revoke the cancellation of the applicant’s visa was engaged.

50    The respondent submits that the effect of the applicant’s submissions follow a limited line of authority in this Court involving a “two-stage” approach to decisions made under s 501CA(4), which is against the weight of authority.

51    The respondent submits that the better view of the authorities is that s 501CA(4) involves only one stage. The respondent refers to Gaspar v Minister for immigration and Border Protection [2016] FCA 1166; 153 ALD 338, in which North ACJ held at [38] that:

The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked …

52    The respondent submits that North ACJ’s reasoning in Gaspar recognises that there is an area of decisional freedom leading to the state of satisfaction (or non-satisfaction) as to whether there was “another reason” why the cancellation decision should be revoked and it recognises that the Minister is obliged to “examine the factors for and against revoking cancellation” and entails “an assessment and evaluation of those factors”. The respondent submits further that North ACJ’s reasons in Gaspar has been followed in numerous cases as to which see the discussion in Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125 at [83]-[94]; 295 FCR 315.

53    The respondent submits that there was no error in the respondent’s approach in evaluating the factors for and against revocation of the cancellation decision and weighing the considerations to reach a conclusion.

54    The applicant’s submissions that the respondent failed to perform his statutory task or failed to act on a correct application of the law cannot be accepted.

55    First, in so far as the respondent arrived at a decision not to revoke the cancellation of the applicant’s visa by reference to the matters in Direction 90, although the respondent in making the decision personally was not bound to comply with Direction 90, the fact the respondent carried out an evaluation by reference to the matters set out in that Direction, of itself, does not result in the Minister failing to carry out this statutory task. Second, the applicant’s submission that having found the prospect of indefinite detention weighed in favour of revocation of the cancellation of the applicant’s visa, that one ground, in effect, prevails over all other considerations, is not supported by authority as to the correct application of s 501CA(4).

56    On the issue of indefinite detention, after the Court reserved judgment, and just prior to delivery of this judgment, the High Court delivered its decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCA 37. As a consequence of that decision, the applicant no longer faces indefinite detention and the Court has been informed the applicant was granted a temporary bridging visa by the respondent on 23 November 2023.

57    The Court invited the parties to make further submissions in writing on the effect of NZYQ. The applicant took that opportunity, the respondent did not.

58    NZYQ concerned the constitutional principle initially stated in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1, 33 (Brennan, Deane and Dawson JJ). In that matter, two sections of the Act authorised and required the detention of a person who was within a category of non-citizens who had entered Australia unlawfully by boat. The detention was required to continue unless and until the person was either removed from Australia or granted an entry permit, but the maximum period of detention was capped at 273 days and the person was required to be removed from Australia “as soon as practicable” if the person asked for that to occur. The impugned sections were held to be supported by s 51(xix) and not to contravene Ch III of the Constitution.

59    In Lim, The High Court said at [33]:

… the two sections will be valid laws if the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered. On the other hand, if the detention which those sections require and authorize is not so limited, the authority which they purportedly confer upon the Executive cannot properly be seen as an incident of the executive powers to exclude, admit and deport an alien. In that event, they will be of a punitive nature and contravene Ch III’s insistence that the judicial power of the Commonwealth be vested exclusively in the courts which it designates.

60    The High Court in NZYQ referred to the reasoning of the majority in Al Kateb v Godwin [2004] HCA 37; 219 CLR 562 at [45] and the observation by McHugh J that:

[A] law requiring the detention of the alien takes its character from the purpose of the detention. As long as the purpose of the detention is to make the alien available for deportation or to prevent the alien from entering Australia or the Australian community, the detention is non-punitive.

61    The High Court considered that statement as being both incomplete and an inaccurate statement of the applicable principle: NZYQ at [43], before continuing at [44] that:

The application of the principle in Lim, although ultimately directed to a single question of characterisation (whether the power is properly characterised as punitive), requires an assessment of both means and ends, and the relationship between the two. Applying that principle in circumstances where there is no real prospect of the removal of the alien from Australia becoming practicable in the reasonably foreseeable future, it cannot be said that, objectively determined, the “purpose of the detention is to make the alien available for deportation” or “to prevent the alien from entering Australia or the Australian community” pending the making of a decision as to whether or not they will be allowed entry.

62    Applying those considerations to ss 189(1) and 196(1) of the Act, the Court continued: at [60] that to authorise continuation of the plaintiff’s detention required proof that there existed a real prospect of the plaintiff’s removal from Australia becoming practicable in the reasonably foreseeable future.

63    The applicant submitted that on the assumption that indefinite detention is no longer possible for the applicant, in light of NZYQ (on the basis that there was no real prospect of the plaintiff’s removal from Australia becoming practicable in the reasonably foreseeable future) it nonetheless remained the case that the Minister failed to perform the required statutory task or failed to act on a correct application of the law when the Minister relied on the applicant being indefinitely detained. To that extent, the applicant reiterated his submissions made at the hearing and in writing that the Minister misunderstood the statutory task as requiring a balancing or weighing of multiple reasons both for and against revocation.

64    The applicant also sought to amend the first ground of the application to delete the phrase “he would be indefinitely detained without revocation”. No objection having been received to that application, the applicant is granted leave to amend ground one of the application accordingly.

65    Consequent upon the decision in NZYQ, the applicant advanced two further contentions.

66    First, since the applicant was required to be released into the Australian community, a different factual scenario to that which was before the Minister, the consequence was that he would be in the Australian community as an unlawful non-citizen with no right to work and no access to social security, both of which are attached to a visa. The applicant submitted that no part of that reality was considered or weighed by the Minister nor, did the Minister consider these matters in combination with the applicant being the subject of parole conditions until 2026. The applicant submits those factors, by themselves, could comprise “another reason” for the Minister to exercise his power under s 501CA(4) of the Act.

67    Whereas those matters may well be factors to be taken into account now, it is for the reasons set out above concerning the proper approach to the exercise of the power in s 501CA(4) that I do not accept that those factors by themselves could comprise “another reason”.

68    Second, the applicant contends the Minister erred in making a decision that was legally unreasonable by making a decision on an understanding of the law which, by the time of judicial review, has been clarified in a way that is fundamentally different to what the decision-maker understood and applied.

69    I do not accept that contention. Although the law has changed, I do not consider the Minister’s decision was legally unreasonable as that concept was discussed by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [131], [133] and [135].

70    Accordingly, ground one is not made out.

Ground two

71    The applicant submits that the respondent’s decision at Reasons [67] was legally unreasonable and in doing so made three broad contentions to support that submission.

72    The first is that it was unreasonable for the respondent to refer to the fact that the applicant’s rehabilitation had not been tested in the community. The applicant refers to CKL21 v Minister for Home Affairs [2022] FCAFC 70; 293 FCR 634 at [86] to submit that the “Minister’s conclusion must be described as speculative, based on mere conjecture or supposition unsupported by evidence”.

73    In CKL21 the Full Court allowed an appeal against the primary judge’s decision on judicial review that the Minister’s decision not to revoke the mandatory cancellation of the appellant’s visa pursuant to the Minister’s power in s 501CA(4) of the Act was not affected by jurisdictional error.

74    The Minister had based the decision not to revoke the cancellation of the appellant’s visa, not only on the fact the appellant had committed a very serious crime (murder), but also on the risk to the Australian community of the appellant re-offending in a similar manner.

75    The Full Court reiterated that the Minister had no duty to evaluate the risk of re-offending in any particular way or to ascribe any particular characterisation as the quality of the risk: Brown v Minister for Immigration and Border Protection [2015] FCAFC 141; 235 FCR 88 at [41]; AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; 243 FCR 451 at [55].

76    However, the Minister had found an ongoing risk that the appellant would re-offend and that he could not rule out the possibility of further offending by the appellant. The Full Court held: at [71], that that finding should be understood as meaning “… that the appellant posed a risk of re-offending that was greater, in a more than immaterial way, than the risk of the ordinary person residing in Australia committing the offence of murder or other similar offence”.

77    Accordingly, the Full Court proceeded to consider the basis for the Minister’s finding that the appellant posed a risk of re-offending, by committing the serious crime of murder or some similar offence, which was greater than the “risk” of any ordinary person committing such a serious offence. The Full Court found the Minister had no basis upon which to favour the conclusion that the risk of re-offending was greater than the risk of any ordinary person committing such a serious offence.

78    As part of their reasoning, the Full Court referred to Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559, 574-575 in which the High Court (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) considered the process of reasoning necessary to make administrative findings about the likely occurrence of future events. Their Honours said:

The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability — high or low — of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.

Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. …

79    The respondent submits that it is permissible to rely upon the absence of a demonstration of rehabilitation in the community where that involved no unfairness on the part of the respondent as the applicant was in criminal custody at the relevant time. The respondent refers to CKL21 at [78] in which the Full Court held that there was no error in the finding that the appellant’s conduct had not been tested in the general community.

80    I accept the respondent’s submissions. There was no error on the part of the respondent by referring to the applicant’s rehabilitation not having been tested in the community where the reason for that was the applicant’s incarceration.

81    The second contention is that it was legally unreasonable for the respondent to conclude that there was a “low likelihood” the applicant would offend where “[o]n the [respondent]’s own findings, every one of these factors indicated that the likelihood of ‘similar conduct’ was vanishingly low to non-existent”.

82    The applicant submits that when evaluating the applicant’s risk of reoffending, the respondent had regard to “factors that may assist to explain [the applicant’s] past conduct, as well as his more recent conduct, remorse and rehabilitation”: Reasons [34].

83    The respondent submits that while the respondent may have referred to positive factors in the applicant’s favour, there were also findings made which reduced the weight given to various factors. The respondent submits that there was a probative basis to find a low risk of re-offending, and the reasoning discloses an evident and intelligible justification. The respondent also submits that the present matter may be differentiated from CKL21, as the nature of the present matter is significantly different, in that the applicant’s conduct occurred in the context of the applicant’s relationship with a woman which was characterised by the respondent, based on the sentencing remarks, as “controlling, threatening and coercive” conduct.

84    I accept the respondent’s submissions. The respondent’s finding: Reasons [67] was a conclusion reached by the respondent after a considered evaluation of the various matters identified under the part of Direction 90 dealing with the protection of the Australian community. Having taken into account a number of matters, the overall conclusion under this primary consideration was that the respondent considered there to be a low likelihood of the applicant re-offending.

85    In SZMDS at [131], [133] and [135] Crennan and Bell JJ considered the concept of a decision being unreasonable, irrational or illogical. Their Honours identified the test for illogicality or irrationality as being whether on the evidence, logical or rational or reasonable minds might adopt different reasoning or might reach a different decision or finding on the evidence. If the reasoning process engaged in was open to the decision-maker and the decision reached was open on that process, then notwithstanding that logical or rational or reasonable minds might differ in the conclusion reached, the fact that one conclusion has been preferred over another does not mean that a decision can be said to be illogical or irrational or unreasonable. Their Honours said: at [135]

On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or 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. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims …

86    The respondent’s conclusion was reached by reasoning which is intelligible and directed towards the considerations set out in Direction 90. It may be that others may have reached a different conclusion, however that is not the test. The respondent’s assessment of “low likelihood” was not legally unreasonable, illogical or irrational.

87    The third contention advanced by the applicant under ground 2 is that there was a “… glaring disproportion between the respondent’s finding and the conclusion that notwithstanding there was, at most, a ‘low likelihood’ of re-offending, nonetheless the respondent concluded in his consideration of the protection of the Australian community that this consideration warranted significant weight in favour of non-revocation.” The applicant submits that notwithstanding there was a low likelihood of re-offending giving rise to what the applicant describes as “the mere possibility of harm” arising from the low likelihood, nonetheless the consequence was a continued deprivation of the applicant’s liberty such that the respondent’s decision was infected by error in the form of legal unreasonableness.

88    The respondent submits that the respondent’s finding that significant weight should be placed on the protection of the community consideration was not based only on an assessment of risk but was based on a combination of likelihood and gravity of the offending.

89    The respondent submits that it was open to the respondent to conclude that the protection of the Australia community should have been given significant weight in favour of non-revocation of the cancellation decision. The respondent also submits that the respondent weighed several considerations as part of his decision, including the expectations of the community in relation to people who commit serious family violence offending and/or violent offences against women. The respondent submits that the respondent did not consider the applicant “should be detained indefinitely because of the mere possibility of harm arising from conduct he found to be ‘a low likelihood’” as contended by the applicant.

90    I accept the respondent’s submissions. As I have noted, the respondent’s conclusion was reached by reasoning which is intelligible and directed towards the various considerations set out in Direction 90. Whereas others may reach a different conclusion, as I have noted above, that is not the test.

91    As to indefinite detention, it is for the same reasons I have set out above in discussing NZYQ that I do not accept this third contention.

92    It is for these reasons that ground two fails.

Extension of time

93    In view of my conclusion that there is no merit in the substantive application, it is not in the interests of the proper administration of justice that there be an order extending time within which to file the application.

CONCLUSION

94    The application must be refused. Accordingly, there will be orders:

(1)    The application for an extension of time within which to bring the application is refused.

(2)    The applicant is to pay the respondent’s costs of and incidental to the application on a lump sum basis to be assessed by a Registrar of the Court if not agreed.

Associate:

Dated:    8 December 2023