Ground 6 - risk to the Australian community
56 The Minister's reasons:
(1) canvassed the elements of Mr Ali's offending that indicated that he might be at risk of reoffending, finding that the risk was low but ongoing: see [60]-[62] of the Minister's reasons, reproduced at [24] above; and
(2) weighed this risk against the harm that would likely be inflicted on the Australian community if he did reoffend, concluding that even the possibility of that occurring was unacceptable: see [69]-[71] of the Minister's reasons, reproduced at [25] above.
57 This ground of review asserts that there was jurisdictional error in the finding at [62] that there was an ongoing risk that Mr Ali would reoffend and in concluding at [71] that he represented an unacceptable risk of harm to the Australian community. Mr Ali made the following submissions as to what the Minister's reasons were said to reveal by way of jurisdictional error:
(1) The association between the offending and intoxication was ameliorated by the fact that Mr Ali had not been drinking for two years and would do his utmost to stay sober, both points having been noted in the Minister's reasons at [55] and [56], being matters that were the subject of express representations. Mr Ali submits that as this was critical in assessing the risk of reoffending, the Minister failed to give proper and genuine consideration to this representation.
(2) It was irrational or illogical for the Minister to come to the conclusion that the applicant represented an unacceptable risk of harm to the Australian community at [71], in circumstances in which there had been a finding at [60] that there was a low risk of reoffending, a finding at [61] that the monitoring of Mr Ali on a child protection register would act as a protective factor in lowering his risk of reoffending, and a finding at [69] that the Minister could not rule out the possibility of further offending, finding that the risk of reoffending was no higher than a possibility, together with the sentencing judge finding that the offence, although serious, was towards the lower end of the scale without being at the lowest end.
58 Reliance was placed by Mr Ali on the decision in Lyons v Minister for Immigration and Border Protection [2017] FCA 1381. However, Lyons largely turned on the failure of the Minister to appreciate well-settled sentencing principles as they applied to the facts of that case and had an important bearing on the assessment of risk to the community. It turned on the Minister having regard to a sentence that was imposed, but not to the fact that the sentence was suspended, and thus how that latter factor needed to be considered in relation to assessing risk to the community. A second aspect of Lyons concerned the adverse treatment of a pragmatic guilty plea by treating that as somehow an aggravating circumstance. Each misunderstanding affected the exercise of jurisdiction. There is no such departure from the understanding of sentencing principles demonstrated in this case, let alone such a departure that could be said to have exposed error in the performance of the jurisdictional task. Lyons must be seen as a rare and isolated case, turning on its own facts that exposed jurisdictional error in an unusual way.
59 The Minister submits that:
(1) it was open to him to conclude, on the basis of the evidence, that Mr Ali was an ongoing risk to the community - for the reasons that follow, I accept this submission;
(2) he did not fail to consider Mr Ali's representation that he had been sober for two years, as that was expressly considered - again, that is undoubtedly correct;
(3) it was open to interpret the remarks on sentence as constituting a finding that there was a risk of Mr Ali reoffending - while not crystal clear, that is an interpretation that was available to the Minister;
(4) while it may be correct to suggest that a person's knowledge that their visa may be cancelled if they reoffend could reduce the risk of that occurring, there was no need to hypothesise about this possibility, especially as Mr Ali did not make any representations on this topic - this point was expressly noted as a protective factor by the Minister at [61]; and
(5) it was open to find that Mr Ali constituted an unacceptable risk to the community, as doing so did not unduly elevate the chance that he might reoffend but, rather, emphasised the seriousness of the consequences should he do so - indeed, it could not be ruled out that Mr Ali would reoffend, the nature of the offending was very serious and, if it were repeated, it would inflict lasting damage on the victim. As such, in my view and for the reasons that follow, the Minister's submissions as to how to interpret his conclusions are reasonable on this point.
60 The central complaint made by Mr Ali is in truth a thinly disguised exercise in merits assessment, dressed up in the language of legal unreasonableness, irrationality and illogicality. In my view, none of the conclusions asserted by Mr Ali are reasonably open on any of the arguments he has advanced. It is of some importance to note that Mr Ali has always denied sexually assaulting his neighbour's grandchild. This is despite the fact that the evidence of his offending was apparently overwhelming. The tail-end of the assault was witnessed by the child's mother upon entering the room and interrupting him and his DNA was later found on her underwear. Signs of physical injury (albeit not lasting signs) that were consistent with digital penetration were also observed from the victim following medical examination. The victim was able to describe reasonably clearly what Mr Ali had done. All of those features are drawn from the Minister's reasons at [44] to [47]. Mr Ali's continued denial of having committed the offence was expressly referred to in the sentencing remarks in a manner that does suggest, albeit not with ideal clarity, a risk of reoffending, this being a point that was also noted in the Minister's reasons at [60], as well as the prior observation at [54] of Mr Ali's lack of insight into his own offending.
61 Mr Ali's continued denial of committing the offence had a role in the assessment of his risk of reoffending, both in relation to his sentence and in relation to the Minister's decision. The continued denial of the offending alone, as well as in combination with other factors, meant that neither the trial judge in imposing sentence, nor the Minister in deciding whether or not to revoke the visa cancellation, could rule out the possibility of Mr Ali reoffending. It does not matter in any material way how that risk is described, be it low or otherwise.
62 In those circumstances, not only was it rational for the Minister to conclude that there was an ongoing risk of Mr Ali reoffending, however low that risk might be, but that it might be seen to be very difficult to reach any other conclusion in a rational and coherent way. The Minister did no more than that. On the question of harm, the proper and rational way to read the Minister's reasons, without any need to resort to a beneficial reading, is that he concluded that any risk of reoffending was too high, given how dire the consequences would be should that occur. Such a conclusion was fairly open to the Minister and was within the scope of decision-making that was for him alone to carry out.
63 I am of the view that this ground of review was at all times without merit on its face, even if some explanation was required to demonstrate why that was so. An extension of time must therefore be refused in relation to this ground.