Abdel-Hady v Minister for Immigration and Border Protection

PROCEDURAL FAIRNESS 8 The power to cancel a visa under s 501(2) of the Act may be exercised by a delegate of the Minister or by the Minister personally. A decision-maker other than the Minister is bound to comply with any direction issued by the Minister pursuant to s 499 of the Act in the exercise of that power. 9 On 22 December 2014 the Minister issued a direction titled Direction 65 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA. Paragraph 9(1) of Direction 65 provides that in deciding whether to cancel a visa, the following are "primary considerations": a) Protection of the Australian community from criminal or other serious conduct; b) The best interests of minor children in Australia; c) Expectations of the Australian Community. 10 Paragraph 9.2(1) provides that decision-makers "must make a determination about whether cancellation is, or is not, in the best interests" of the visa holder's minor children. In considering the best interests of the child, the following factors must be considered, "where relevant" (Direction 65, [9.2(4)]): a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact); b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements; c) The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child; d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways; e) Whether there are other persons who already fulfil a parental role in relation to the child; f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child); g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct. 11 Direction 65 is not binding on the Minister personally: see Hopkins v Minister for Immigration and Citizenship [2007] FCA 1108 at [40]; Minister for Immigration and Multicultural and Indigenous Affairs v George (2004) 139 FCR 127 at [16]; Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172 at [10]; Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 at [31]. 12 By letter dated 13 April 2015, Mr Abdel-Hady was provided an opportunity to make submissions and provide evidence bearing on the question of whether or not his visa should be cancelled on character grounds. The letter stated, in part: If the decision-maker is a delegate of the minister they must follow Direction 65 - Visa Refusal and Cancellation under s501. Direction 65 is enclosed for your information. If the minister makes a decision personally, he or she is not required to give consideration to Direction 65, though it provides a broad indication of the types of issues that he or she may take into account. Read Direction 65 carefully. As you hold a visa you should address each paragraph in PART A that is relevant to your circumstances. You can provide any other information that you feel the decision-maker ought to take into account and you can provide letters of support from your family, friends, employer or others if you wish. 13 In response to that letter, Mr Abdel-Hady, by his representatives, provided detailed written submissions. At least four pages of the submissions address the question of whether it was in the best interests of R for the visa to be cancelled. Among other things, it was submitted that cancellation of Mr Abdel-Hady's visa would deprive him of the opportunity to continue family law proceedings by which he sought to regain access to R. Mr Abdel-Hady's representatives specifically referred to the considerations in [9.2(4)] of Direction 65 and addressed some, but not all, of the considerations referred to in [9.2(4)(a) to (h)]. Repeated reference was made to the United Nations Convention on the Rights of the Child, upon which, it is said, Direction 65 was partly based. 14 In his written reasons for cancelling the visa, the Minister stated (at [89]): In considering whether or not to cancel Mr ABDEL-HADY's visa, I gave primary consideration to the best interests of [R] and have found that her best interests would be best served by not cancelling the visa. 15 The Minister referred to the serious crimes that had been committed by Mr Abdel-Hady. He concluded that the Australian community would be exposed to great harm should Mr Abdel-Hady reoffend in a similar fashion. The Minister stated that he could not rule out the possibility of further offending and that the Australian community should not tolerate any further risk of harm. That consideration, the Minister concluded, outweighed countervailing considerations in Mr Abdel-Hady's case "including the best interests of the child as a primary consideration and any impact on Australian business interests" (reasons, [93]). 16 Earlier in the reasons, the Minister addressed the topic of R's best interests in the following terms: Best interests of minor children 56. In considering whether or not I should exercise my discretion to cancel Mr ABDEL-HADY's visa, I acted in conformity with Article 3 of the United Nations Convention on the Rights of the Child, and treated the best interests of any children under 18 in Australia affected by the cancellation of Mr ABDEL-HADY's visa as a primary consideration. 57. Mr ABDEL-HADY is the biological father of Miss [R], born 16 August 2012, aged four years. He was married to [R's] mother, Ms [M]. They separated on 23 July 2013. 58. Mr ABDEL-HADY is currently subject to a two year Apprehended Violence Order as a result of his domestic violence related convictions in relation to Ms [M]. The Order extends to [R]. Mr ABDEL-HADY has not seen [R] since the breakdown of the marital relationship. 59. I have considered Mr ABDEL-HADY's representation of the role he played in [R's] life prior to the separation. Mr ABDEL-HADY spent much of his time caring for [R]. He changed nappies, played with [R] and gave her attention. I have noted greeting cards received from [R] to Mr ABDEL-HADY demonstrate the nature of the relationship. I accept that Mr ABDEL-HADY had an active parental role with [R] prior to the separation. 60. I have given regard to Mr ABDEL-HADY's representation that he is seeking to regain parental access of [R] through the Family Court of Australia which he initiated in 2013 and is ongoing. I note that a five day hearing has been set down to commence on either 27 February or 6 March 2017. Further, I note Mr ABDEL-HADY has undertaken specific parenting courses and is awaiting others to commence as recommended by experts to assist in his endeavour. Mr ABDEL-HADY has also commenced therapy as recommended. 61. I have taken into account Mr ABDEL-HADY's representation that he provides financial support and continues to send gifts and cards for [R] and that he can continue to provide financial and physical support for [R]. 62. I note with concern Mr ABDEL-HADY's representation that [R] may be at risk from her mother. I have given regard to the psychologist report from Mr Cohen where he notes concerns for an email Mr ABDEL-HADY received from Ms [M], dated 10 April 2012, some four months before the birth of [R] regarding a statement she made in reference to a virus she had contracted that could have serious health complications for the unborn child. I note that Ms [M], in her email, acknowledges her statement is horrible. Ms [M] clarifies that the pressure of possibly having an unhealthy baby is affecting her. I have given regard to information in Mr Cohen's report that Mr ABDEL-HADY told him Ms [M] had hit him while he was holding two week old [R]. I note this allegation was raised at Mr ABDEL-HADY's trial in the Local Court of New South Wales and the Magistrate found the allegation was not credible. I proceed on the basis of the Local Court's findings and do not accept the comments of Mr Cohen. 63. I have considered Mr ABDEL-HADY's representation that Mr ABDEL-HADY's primary concern is and always will be [R], he has never shown any sign of abuse or neglect to [R] and there is no evidence that [R] has suffered trauma from his contact. 64. I have also taken into account judgment remarks of 4 December 2014 in the Local Court of New South Wales where the Magistrate noted the offending by Mr ABDEL-HADY on 23 July 2013 had occurred in the presence of [R] and that she could be heard crying on a tape recording of the incident. Mr ABDEL-HADY's behaviour did not change after he was told by Ms [M] in the recording that [R] was scared. The Magistrate further remarked that [R's] presence aggravated his offending further. 65. I have considered Mr ABDEL-HADY's representation that children with involved fathers are developmentally advantaged and research indicates that children of distressed parents are at greater risk of developing mental health problems. I have given regard to the psychologist report from Mr Cohen who states that in his opinion [R] would be placed at severe risk of developing anxiety and depression if Mr ABDEL-HADY's visa was cancelled and he was moved from Australia. 66. Further, I have considered Mr ABDEL-HADY's representation that it would be unfair to cancel Mr ABDEL-HADY's visa prior to the outcome of the Family Court matter as being offshore may influence the decision of the Family Court and cancellation of Mr ABDEL-HADY's visa would be contrary to the Convention on the Rights of the Child. 67. I accept that it is generally in the best interests of children to have immediate access to both their parents as supported by the Convention on the Rights of the Child. 68. While I am concerned that the behaviour of [R's] parents in their parenting dispute may adversely affect [R], I note that this is in the hands of the Family Court of Australia and [R's] best interests will be identified and maintained by an Independent Children's Lawyer. 69. I find that it is in the best interests of [R] to not cancel Mr ABDEL-HADY's visa to allow [R] the opportunity to have a relationship with Mr ABDEL-HADY if permitted by the Family Court of Australia or should she wish to do so at any point in the future. 17 In the proceedings before the primary judge, Mr Abdel-Hady submitted that the correspondence he had received from the Minister contained an assurance that the Minister would comply with Direction 65, notwithstanding that the Minister was not personally bound to comply. It was then submitted that the Minister did not in fact comply with Direction 65, because he had failed to make a determination as to whether or not cancellation of Mr Abdel-Hady's visa was in the best interests of R. In the latter respect, Mr Abdel-Hady submitted that the statement at [69] of the Ministers reasons was a contingent finding, in that it expressed the best interests of the child in terms that depended upon the outcome of the family law proceedings and on the future, but unknown, wishes of R (then aged four). That circumstance, it was submitted, gave rise to a breach of the rules of procedural fairness because the Minister had departed from the manner of decision-making that had been foreshadowed in the earlier correspondence without first providing Mr Abdel-Hady with an opportunity to be heard on whether or not the Minister should so depart. Arguments to the same effect were advanced on this appeal. 18 The primary judge concluded (at [37]) that these submissions were "based on a fundamental misreading or mischaracterisation" of [69] of the Minister's reasons. His Honour continued: 39 In paragraph 59, the Minister accepted that Mr Abdel-Hady had played an active parental role in his daughter's life prior to separation from Ms M. Perhaps more significantly, in paragraph 60, the Minister accepted that Mr Abdel-Hady was seeking to regain parental access through the Family Court. In paragraphs 62 to 64, the Minister considered and weighed up other information and submissions that had been put forward on Mr Abdel-Hady's behalf concerning the relationship between him, his former wife and their daughter. Importantly, in paragraph 65, the Minister indicated that he had considered the opinion expressed in a psychologist report which was to the effect that Mr Abdel-Hady's daughter would be placed at severe risk of developing anxiety and depression if Mr Abdel-Hady's Visa was cancelled. At paragraph 67, the Minister accepted that it was generally in the best interests of children to have immediate access to both their parents 'as supported by the Convention'. In paragraph 68, the Minister expressed concern that the behaviour of Mr Abdel-Hady and his former wife in their parenting dispute may adversely affect their daughter, but noted that the daughter's best interests would be considered in the context of the Family Court proceedings and that her interests would be 'identified and maintained' by an independent lawyer appointed to represent her in those proceedings. 40 The Minister's reasoning and findings in the paragraphs just summarised reveal a careful consideration and weighing of the information and submissions that were before the Minister in relation to the best interests of Mr Abdel-Hady's daughter. When paragraph 69 is considered in the context of the discussion and finding in those paragraphs, it is readily apparent that the Minister was mindful that, at the time of his decision, Mr Abdel-Hady did not have access to his daughter, but that he accepted the submission that had been made on Mr Abdel-Hady's behalf that the likely outcome of the Family Court proceedings was that Mr Abdel-Hady would be regaining access to his daughter 'in the foreseeable future'. More importantly, it is quite clear that the Minister accepted that, in those circumstances, it was in Mr Abdel-Hady's daughter's best interests not to cancel the Visa so that she would have the opportunity to renew her contact and relationship with her father when, as expected, he regained access rights. 41 Read in that way, paragraph 69 is entirely consistent with the Minister's emphatic, unequivocal and unqualified statement in paragraph 89 that he gave 'primary consideration to the best interests of [R] and have found that her best interests would be best served by not cancelling the visa'. 42 Contrary to Mr Abdel-Hady's submission, a fair reading of paragraph 69 in the context of the Reasons as a whole does not indicate that the Minister found only that the daughter's best interests in not having the Visa cancelled were contingent, or only arose, if the Family Court granted Mr Abdel-Hady access rights in the future. Nor is there any basis to conclude, as Mr Abdel-Hady contended, that the emphatic statement in paragraph 89 was either a misstatement or did not accurately or truthfully reflect the findings made by the Minister. 19 It followed, his Honour held (at [44]), that there was no basis to conclude that Mr Abdel-Hady was denied procedural fairness because: The very premise underlying Mr Abdel-Hady's contention that he was denied procedural fairness - that the Minister failed to act in accordance with Article 3 of the Convention and did not make any finding concerning the best interests of his daughter - is a false premise … 20 In any event, the primary judge held, even if the Minister's finding was equivocal or contingent, it would not follow that Mr Abdel-Hady was denied procedural fairness or natural justice. His Honour said: 45 Mr Abdel-Hady's submissions concerning the alleged denial of procedural fairness hinged on the contention that it was reasonable for Mr Abdel-Hady to expect that the Minister would comply with the Convention and unfair of the Minister not to advise Mr Abdel-Hady that he might not. The alleged unfairness, therefore, was said to be that Mr Abdel-Hady's legitimate expectation was disappointed. The difficulty for Mr Abdel-Hady, however, is that it is now well-recognised that the mere fact that a person's legitimate expectations concerning the procedure that might be adopted by a decision-maker are disappointed does not mean that they have been denied procedural fairness. 46 In Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, Kiefel, Bell and Keane JJ said (at [30]): The 'legitimate expectation' of a person affected by an administrative decision does not provide a basis for determining whether procedural fairness should be accorded to that person or for determining the content of such procedural fairness. It is sufficient to say that, in the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions. Recourse to the notion of legitimate expectation is both unnecessary and unhelpful. Indeed, reference to the concept of legitimate expectation may well distract from the real question; namely, what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made. 47 Gageler and Gordon JJ said (at [60]-[61]): Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given. That is to highlight one of the confusions that can be introduced when the concept of 'legitimate expectation' is used as a basis for determining the content of procedural fairness. By focusing on the opportunity expected, or legitimately to have been expected, the concept can distract from the true inquiry into the opportunity that a reasonable administrator ought fairly to have given. The former is relevant only in so far as it bears on the latter. As Gleeson CJ put it in Lam [Re Minister for Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1]: '[T]he creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.' (Footnotes omitted.) 48 Here, Mr Abdel-Hady was notified that, while the delegate was required to follow Direction 65, the Minister was not bound by Direction 65 if he made the decision personally. Mr Abdel-Hady was, however, told that Direction 65 in any event provided a broad indication of the types of issues that the Minister may take into account and effectively invited him to address his submissions or representations by reference to Direction 65. And that is exactly what Mr Abdel-Hady did. Specifically, and relevantly, he made detailed and extensive submissions to the effect that the best interests of his daughter were best served by not cancelling his Visa. 49 In those circumstances, whatever the Minister may ultimately have decided concerning the best interests of Mr Abdel-Hady's daughter, it cannot be concluded that Mr Abdel-Hady was not afforded a fair opportunity to be heard concerning that matter, or the cancellation of his Visa generally. The dashing of any expectation that Mr Abdel-Hady may have had concerning the approach that the Minister would or might take in relation to the Convention and the best interests of his daughter, accordingly, had no impact on the fairness of the procedure or the fairness of the opportunity that Mr Abdel-Hady had to make submissions in relation to those matters. He was not denied procedural fairness. 21 The first ground of appeal is expressed as follows: Ground 1: The 'Natural Justice' Ground 1. The Justice below erred at [37] of the judgment by finding that 'a fair reading of the Reasons clearly reveals that the Minister did give primary consideration to the best interests of Mr Abdel-Hady's daughter' and that 'Mr Abdel-Hady's submissions were based on a fundamental misreading or mischaracterisation of paragraph 69 of the Reasons.' To the contrary, a fair reading of [69] in the context of the statement of reasons as a whole establishes that the Minister found that the daughter's best interests in not having the visa cancelled were contingent, or only arose, if the Family Court granted the appellant access rights in the future. Similarly, there was a reasonable basis to conclude that the statement by the Minister at [89] was either a misstatement or did not accurately or truthfully reflect the findings made by the Minister. It follows that the Minister did not comply with the Convention in accordance with Direction 65. 22 There then appears four sub-paragraphs under the heading "Particulars". The particulars add nothing of substance to the primary argument. They merely summarise portions of the Minister's reasons and the reasons of the primary judge and repeat, unnecessarily, what is said in the principal paragraph. 23 This ground of appeal may be shortly dealt with. 24 There is no appealable error affecting the approach of the primary judge to the interpretation of the Minister's reasons. The primary judge correctly read [69] in the context of all that had preceded it and having regard to the unequivocal statements that followed it. The submission that the Minister did not mean what he said at [89] of his reasons has no sensible foundation. It was properly rejected by the primary judge. 25 Moreover, the grounds of appeal do not allege appealable error affecting the conclusion of the primary judge that there would be no breach of the rules of procedural fairness even if the Minister had failed to make an unequivocal finding as to where the best interests of the child lay. His Honour concluded (at [49]) that there was no denial of natural justice "whatever the Minister may ultimately have decided concerning the best interests of Mr Abdel-Hady's daughter" because no unfairness had been shown. Counsel for Mr Abdel-Hady did not point to any alleged appealable error in respect of the critical reasoning of the primary judge extracted at [18] above. The reasoning is in accordance with what the High Court said in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 (Kiefel, Bell and Keane JJ at [30]) and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, upon which his Honour relied. 26 To his Honour's conclusions we would add that the submissions of Mr Abdel-Hady were premised upon the Minister having given an assurance that he would comply with Direction 65 in the letter. The correspondence sent to Mr Abdel-Hady in advance of the decision contained no such assurance. On its terms, the correspondence foreshadowed that Direction 65 provided a broad indication of the types of issues the Minister may take into account. It has not been shown that the Minister departed from the course of decision-making foreshadowed in the correspondence, sensibly and fairly construed. 27 The first ground of appeal fails.

LEGAL UNREASONABLeNESS 28 In the proceedings before the primary judge, the submission that the Minister's decision was affected by legal unreasonableness was contained within a fairly narrow compass. The relevant ground of review was expressed as follows: 2. The decision was affected by legal unreasonableness. Particulars (a) The Minister's finding at [69] of his decision (see Ground 1 Particular (b) above) had no relevant application to the Minister's discretion as to whether to cancel the applicant's visa on 31 March 2017, and so lacked an evident and intelligible justification. 29 This ground was introduced by a further amended originating application filed on 8 March 2018. The ground rested on the same misunderstanding of [69] of the reasons affecting the first ground, namely that the Minister's finding was contingent or equivocal and so did not constitute a true finding as to where the best interests of R lay. In rejecting the ground of review, the primary judge said: 50 This question may also be answered in short terms. The premise that underlay or provided the basis for Mr Abdel-Hady's submission that the decision was legally unreasonable has been shown to be a false premise. 51 When read fairly and in context, the finding made in paragraph 69 of the Reasons concerning the best interests of Mr Abdel-Hady's daughter in the circumstances was not in any sense unreasonable, illogical or irrational. Nor could it be concluded that the finding manifested any error of principle in the Minister's reasoning process. 52 More significantly, the Reasons, read as a whole, plainly revealed an evident and intelligible justification for the Minister's decision to cancel Mr Abdel-Hady's Visa: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76]. Mr Abdel-Hady's submission to the contrary must be rejected. 53 While no doubt Mr Abdel-Hady strongly disagreed with the decision, and reasonable minds may differ as to what should have been the outcome of the exercise of the discretion to cancel the Visa in Mr Abdel-Hady's case, there could be no doubt that the decision to cancel fell well within the lawful area of 'decisional freedom' within which the Minister had a genuinely free discretion, or that the decision fell within the range of possible lawful outcomes of the exercise of the relevant power: Li at [66], [105]. The decision to cancel was accordingly not legally unreasonable. 30 The second ground of appeal is expressed as follows: a) The Justice below erred at [50] of the judgement by finding the 'premise that underlay or provided the basis for Mr Abdel-Hady's submission that the decision was legally unreasonable has been shown to be a false premise.' To the contrary, the Minister's finding at [69] of the statement of reasons had no relevant application to the Minister's discretion as to whether to cancel the appellant's visa on 31 March 2017 and so lacked an evident and intelligible justification. 31 Again, it is not necessary to set out the "Particulars" to this paragraph. The "particulars" restate those parts of the Minister's reasons and the reasons of the primary judge to which objection is taken. A final sub-paragraph merely repeats the principal contention that the Minister's finding at [69] "had no relevant application" to the Minister's discretion as to whether the visa should be cancelled. 32 The second ground of appeal must be rejected for the same reason as the first ground. It rests on the false premise that the Minster's findings about R were contingent or equivocal. The primary judge determined that they were not. There is no appealable error affecting that conclusion. 33 As neither ground of appeal is established, the appeal must be dismissed.

ADDITIONAL ARGUMENTS 34 In considering the grounds for judicial review as articulated in the further amended originating application, the primary judge remarked (at [32]) that the grounds were "not entirely easy to follow or comprehend". His Honour continued: … it was readily apparent from Mr Abdel-Hady's written and oral submissions that both grounds hinged almost entirely on the contention that the Minister's finding in paragraph 69 of the Reasons does not constitute a finding about what lay in R's best interest at the time of the decision. … 35 As can been seen, the Amended Notice of Appeal, on its terms, alleged appealable error affecting the conclusions of the primary judge on the same narrow question upon which the application for judicial review hinged, namely, whether the Minister had committed jurisdictional error by failing to make an unequivocal finding about where R's best interests lay. 36 As in the proceedings before the primary judge, the submissions made by Counsel for Mr Abdel-Hady on this appeal were, at times, difficult to comprehend. Counsel made oral submissions to the effect that the Minister had erred in certain respects not raised in the grounds of appeal. Counsel sought to overcome that difficulty by contorting the words of the Amended Notice of Appeal so as to encapsulate what he described as "evolving" arguments that should be given room to "breathe". He contended that to read the Amended Notice of Appeal too narrowly would be to "strait-jacket" Mr Abdel-Hady in the presentation of his case. Counsel otherwise made no application to further amend the grounds of appeal, instead persisting with his contention that the arguments were "clearly" raised on the grounds of appeal as they are presently framed. 37 Even if Mr Abdel-Hady had made an application for leave to introduce the arguments on this appeal, the application should fail. That is because there is no explanation given for the failure to raise the arguments in the proceedings before the primary judge and the arguments are unmeritorious in any event. 38 The first argument was that the learned primary judge had taken too narrow a view of the grounds for judicial review, particularly in relation to legal unreasonableness. At the conclusion of the hearing of the appeal, Mr Abdel-Hady was afforded the opportunity to file the written submissions that had been made before the primary judge, so as to support his proposition that his arguments on the judicial review application had been misapprehended. The submissions subsequently filed do not support the proposition. To the contrary, the written submissions confined the argument founded on legal unreasonableness to one based on the narrow argument concerning [69] of the Minister's reasons. That argument was properly understood, and correctly rejected, by the learned primary judge. 39 The second argument was that the Minister had failed to have regard to each of the considerations in [9.2(4)(a) to (h)] of Direction 65. That argument must fail principally because the Minister was under no legal obligation to comply with Direction 65 at all. In any event, as has already been observed, Mr Abdel-Hady, through his representatives, made detailed written submissions addressing the considerations referred to in Direction 65 traversing at least four pages. It has not been shown that the Minister failed to take into account any part of those submissions. To the extent that the reasons of the Minister do not contain express references to any one of the relevant considerations listed in [9.2(4)(a) to (h)] of Direction 65, that is explained by the manner in which Mr Abdel-Hady's own submissions to the Minister were expressed. Mr Abdel-Hady did not make submissions in relation to all of the criteria. It cannot constitute jurisdictional error for the Minister to make no reference to matters upon which Mr Abdel-Hady himself had placed no significance. 40 The third argument was that the decision to cancel the visa was legally unreasonable because it was not in accordance with the best interests of R. Counsel's oral submissions in reply went so far as to assert that it would be a "great shame if we start using … legal terms to defeat the best interests of the child". Counsel concluded with a submission that it was not "legally open for the Minister to separate that child from the father". 41 The primary judge concluded that the reasons of the Minister, read as a whole, plainly revealed an evident and intelligible justification for the decision to cancel the visa: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76]. We respectfully agree with that conclusion. The evident and intelligible justification is to be found in the Minister's assessment that the risk that Mr Abdel-Hady may reoffend in a similar fashion, together with the expectations of the Australian community, outweighed considerations that might otherwise favour Mr Abdel-Hady being permitted to remain in Australia. 42 Counsel's submissions betrayed a misunderstanding of now well-established principles concerning the identification of legal unreasonableness as explained by the High Court in Li and applied in decisions of the Full Court of this Court, particularly concerning the cancellation of visas on character grounds: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158. 43 Counsel's submissions also paid insufficient regard to the facts upon which the Minister's decision was based, particularly Mr Abdel-Hady's prior offending. It is to be recalled that the offences committed by Mr Abdel-Hady included assaults inflicted upon R's mother M. In one such assault, the Minister noted, Mr Abdel-Hady punched M continuously in the stomach after she had undergone a caesarean section. It is not necessary to detail further examples. On the facts as found by the Minister, the decision to cancel Mr Abdel-Hady's visa was one that was legally open, notwithstanding the Minister's unequivocal finding that cancellation was not in the best interests of R. 44 The appeal should be dismissed. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood ACJ, Charlesworth and O'Callaghan. Associate: