Consideration
63 As was recently reiterated by the Full Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 397 ALR 1 at [17]:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
64 The Minister's power to revoke the cancellation of a visa under s 501CA(4) is discretionary: Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; 383 ALR 194 at [36] per Nettle, Gordon and Edelman JJ; Viane at [12]. There is a legal presumption that the legislature intended that statutory discretionary powers be exercised reasonably: Li at [24]-[29] per French CJ, [63]-[68] per Hayne, Kiefel and Bell JJ and at [88]-[92] per Gageler J. A discretionary decision may be reviewed against the standard of reasonableness by reference to the reasons given for a decision and also by reference to the outcome: Li at [68] per Hayne, Kiefel and Bell JJ and at [105] per Gageler J. However, where reasons are given for the exercise of a discretionary power, 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) 231 FCR 437 (Singh) at [44]-[47]. While (absent clear words to the contrary) there is a presumption that the legislature intended all statutory discretions and powers to be exercised reasonably, one of the matters which informs the legal standard of reasonableness is whether the subject matter of the power is substantive or procedural: Stretton at [71] per Griffiths J (with whom Allsop CJ and Wigney J agreed). In the present case, the Minister's power to revoke the cancellation of a visa under s 501CA(4) is substantive in nature.
65 While factual findings and associated reasoning in administrative decisions are subject to review for jurisdictional error on the grounds of irrationality, true irrationality must be shown. 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: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 at [9] per Gleeson CJ and at [34]-[37] per McHugh and Gummow JJ; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 at [35]-[38] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [119] and [135] per Crennan and Bell JJ.
66 Applying the foregoing principles, the Court has previously found that a decision-maker, exercising power under s 501CA(4) or a power to cancel a visa, is entitled to conclude that even a low risk of reoffending is unacceptable if the gravity of the harm that might eventuate from the reoffending is sufficiently serious. In BMX15, while the Minister found that the likelihood of reoffending was low (a matter weighing in the applicant's favour), the gravity of possible harm was high (a matter that weighed against the applicant) (at [28]). Justice Bromberg observed (at [29]) that:
That combination of likelihood and gravity (which I will call "overall risk") was weighed against other relevant factors. The Minister considered that the overall risk outweighed those other factors. That was not illogical or irrational. It was not legally unreasonable. There was a clear process of reasoning leading to that outcome. It is true, of course, that other decision-makers might reasonably have reached a different conclusion on the merits, but that (of course) does not suffice to demonstrate that this decision was legally unreasonable. This decision was not "plainly unjust", "arbitrary", "capricious", "irrational", "lacking in evident or intelligible justification", or "obviously disproportionate": cf AZAFQ at [58]. …
67 Similarly, in Stretton, Allsop CJ observed at [16]-[17] that:
[16] … The Minister accepted that the risk of Mr Stretton re-offending was low, but recognised that should re-offending occur the harm could be serious to the community …
[17] It may be that others exercising this governmental power on behalf of the Australian people would have been prepared, on the community's behalf, to take the low risk of the possibility of his re-offending to avoid the harshness inflicted by the removal. That can be accepted. But that is not sufficient for the decision to be characterized as legally unreasonable - as a decision that is of a character not supported by its apparent statutory source. The decision to be made under s 501 called for an evaluative balancing of unquantifiable (though low) risk, possibly serious harm to a person or persons unknown if re-offending occurred, and known immediate human hardship if removal takes place. The decision to be made did not admit of a ready answer by some calculus. The decision as made was one that can be seen to have been reached by reasoning which was intelligible and directed towards, and related intelligibly to, the purposes of the power …
68 That is not to suggest, however, that a decision-maker's findings with respect to the risk to the Australian community of an applicant reoffending is beyond judicial review. In Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 (Muggeridge), the Full Court concluded that the decision of the Minister was legally unreasonable because the reasons of the Minister provided no logical basis for concluding that there was a possibility that the appellant would resume contact with an outlaw motorcycle club, which was the foundation for the Minister's finding that there was a risk of the appellant reoffending in a similar manner to the prior offending and thereby causing harm to the community (at [55] per Charlesworth J, Flick and Perry JJ agreeing). In Ogbonna, Thawley J concluded that the Minister's finding that there was a likelihood, albeit low, of the applicant reoffending was not formed reasonably because it was not supported by probative material (at [47] and [49]). In Splendido, the Full Court concluded that the evidence before the Minister did not afford a probative basis for the Minister's finding that there was a likelihood of the applicant reoffending (at [50]-[51] and [111] per Mortimer J, with whom Moshinsky J agreed at [113], and at [132] per Wheelahan J). So too in Logan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 419 (Logan), Colvin J found that the Minister's conclusion that Ms Logan represented an unacceptable risk of harm rested upon no probative material and was not reasoned logically (at [42]). Justice Colvin explained that the fundamental difficulty with the reasoning was that it contained no finding by reference to current circumstances as to whether Ms Logan posed a risk of reoffending and the evidence before the Minister did not identify such a risk (at [43]).
69 In his reasons for decision, the Minister emphasised on many occasions the very serious nature of the crime of murder committed by the appellant (see reasons at [23], [24], [61], [66], [67], [68], [71], [73], [78], [79], [82], [86], [99], [100], [108]). That is undeniable. The Minister took that consideration into account when assessing the expectations of the Australian community (reasons at [24] and [108]). That consideration was not the subject of challenge. The Court has recognised on many occasions that the seriousness of the applicant's crime may be sufficient to justify a decision to refuse a visa (having regard to the national interest): see for example Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [79] per Gaudron J; Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 at [86] per French, O'Loughlin and Whitlam JJ; Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at [74] per Kiefel and Bennett JJ; Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367 at [72] per Rangiah J (with whom North J agreed). Given the breadth of the Minister's discretion to revoke the mandatory cancellation of a visa, the same consideration must also be relevant in that context and is typically taken into account in connection with the Minister's assessment of the expectations of the Australian community.
70 However, the Minister did not base his decision not to revoke the cancellation of the appellant's visa only on the fact that the appellant had committed a very serious crime. The Minister also based his decision on the risk to the Australian community of the appellant reoffending in a similar manner (reasons [100], [101], [109] and [111]). Thus, the Minister considered the prospect of the appellant committing a further murder, or similar offence, if his visa was returned. As the Minister accepted, a conclusion that the appellant represents an unacceptable risk of harm to the Australian community must be based on probative evidence concerning the risk (or likelihood) of the appellant committing an offence of a particular kind in the future (in this case, murder or a similar offence). The appellant contends there was no probative evidence of such a risk in the present case.
71 In his reasons for decision, the Minister did not define in any manner the degree of risk of reoffending that he believed that the appellant posed. Certainly, the Minister had no duty to evaluate the risk of reoffending in any particular way or to ascribe any particular characterisation to the quality of the risk: Brown v Minister for Immigration and Border Protection (2015) 235 FCR 88 at [41], subsequently cited in AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451 (AZAFQ) at [55]. Nevertheless, in assessing the reasonableness of the Minister's finding, it is necessary to understand what the finding means. The Minister framed the consideration as whether the appellant poses "a risk" of reoffending (see at [72], [99]) and the Minister found that "there is an ongoing risk that [the appellant] would reoffend" (at [101]). Later, the Minister stated that he "could not rule out the possibility of further offending by [the appellant]" (at [109]). Although expressed in somewhat vague terms, the finding must be understood as a finding that the appellant posed a risk of reoffending 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. A conclusion that the appellant posed a risk of reoffending similar to other ordinary Australian residents could not rationally support a conclusion that the risk was unacceptable. Thus, it is necessary to consider the basis for the Minister's finding that the appellant posed a risk of reoffending, by committing the most serious crime of murder or some similar offence, which was greater than the "risk" of any ordinary person committing such a serious offence.
72 In that context, the Minister submitted in the course of argument that the finding concerning the risk of reoffending involved a "low bar". The burden of the submission was that the finding of "a risk" of reoffending required little in the way of evidence. The submission does not reflect any recognised legal principle. A finding that a person is a risk of committing a very serious offence such as murder is a significant finding that requires a probative basis. In circumstances such as this case where there is a wealth of evidence supporting a contrary finding, the need for a probative basis to support a finding of risk is heightened. Describing the finding as involving a "low bar" at best does not assist and at worst is inapt.
73 In both curial and administrative decision-making, there is a significant difference in reaching findings about the occurrence of past events compared with findings about the likely occurrence of future events. In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo), the plurality (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) discussed the process of reasoning necessary to make administrative findings about the likely occurrence of future events, in that case the prospect of the risk of persecution if an applicant (for a protection visa) were returned to their country of nationality. The plurality observed (574-575):
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. …
74 As the above passage makes clear, while the future is not predictable, it is possible to assess the degree of likelihood of an event occurring in the future based on past and current circumstances. On occasions, the task of predicting future events in curial or administrative decision-making has been described as involving speculation. That is an unfortunate description, as the word speculation is typically used as a synonym for conjecture, which is the formation of an opinion without sufficient evidence for proof. In curial and administrative decision-making, the task of assessing the degree of likelihood of an event occurring in the future requires more than mere speculation. It must be based on a logical process of reasoning based on the known facts. A conclusion that a risk "cannot be ruled out" does not, of itself, logically establish the existence of a risk. Further, as the above passage of the plurality in Guo indicates, a risk may be so low that it must properly be disregarded. In assessing the likelihood of a future event, the key facts will include the regularity with which the event has occurred in the past, the conditions under which the event occurred in the past and the likelihood that those conditions have since changed or other events have intervened to interrupt the cycle of regularity.
75 In argument, each of the appellant and the Minister sought to place reliance on previous decisions of the Court that have considered the basis on which a finding was made that the applicant presented an unacceptable risk to the Australian community. It need hardly be said that the process of judicial review, particularly on the ground of legal unreasonableness or irrationality, is fact dependent and the decision in each case will turn on its own particular facts: Singh at [48]. Little if any assistance is obtained from the citation of conclusory phrases extracted from previous decisions. It is necessary to examine the facts, reasoning and conclusion in the present case.
76 A number of the contentions advanced by the appellant can be addressed briefly.
77 First, the appellant challenged the Minister's conclusion that he is an "unacceptable risk" to the community. As submitted by the Minister, the conclusion that the appellant is an "unacceptable risk" to the community involves an evaluative judgment. That does not immunise the conclusion from review: the evaluative judgment must have a probative basis. But in this case the relevant question is whether there was a probative basis for a finding that the appellant posed a risk of reoffending by murder or similar offence (being the basis for the conclusion concerning "unacceptable risk").
78 Second, the appellant challenged the Minister's conclusion that he was an ongoing risk because he would lack "immediate support" in the community and because his conduct had not been tested in the general community. Again as submitted by the Minister, there was no error in the finding that the appellant's conduct had not been tested in the general community. It was a fact that the appellant had not been released into the community and therefore his conduct had not been tested in the community. In relation to support and supervision, it is clear from the reasons that the Minister was referring to the kind of immediate institutional supervision and support that is available to a person in criminal custody or immigration detention as compared to in the community. It is also clear from the reasons that the Minister was aware that the appellant would enjoy family and community support if released from detention.
79 It is a logical fallacy to conclude that a fact has been proved because it has not been disproved. As noted above, a conclusion or finding that a risk "cannot be ruled out" (such as was made by the Minister in the present case at [109] of his reasons) does not, of itself, logically establish the existence of a risk. So too, and as observed by Mortimer J in Splendido (at [95]) and by Colvin J in Logan (at [24]), a finding that the appellant's conduct has not been tested in the community does not establish that the appellant is a risk of reoffending. It is a negative finding about what is not known or established (because the appellant has not been living in the community), rather than a positive predictor of the appellant's future behaviour.
80 The central issue raised by ground two of the appeal is whether there was a probative basis for the Minister's finding that there was an ongoing risk that the appellant would reoffend by committing murder or a similar offence. The facts of this case present a striking example of a case in which a person has previously committed an extremely grave offence, murder, but where the evidence before the Minister barely (if at all) supports any finding concerning the risk of reoffending in the same or similar manner.
81 It should be noted that the Minister's reasons do not expressly state that the Minister considered that the appellant was at risk of reoffending in a similar manner because the appellant had previously offended. Nor did the Minister submit in argument that that was the basis of the Minister's finding with respect to the risk of reoffending. In Muggeridge, the Minister advanced an argument that there was an inherently elevated risk that a person previously convicted of a criminal offence may offend again in the future, and that that propensity was implicitly recognised in s 501 of the Act (see at [44] and [45]). Justice Charlesworth rejected the latter argument (at [46]) and, in respect of the former argument, concluded that the Minister had not in fact engaged in a form of propensity reasoning (at [47]). Justice Charlesworth further observed (at [46]):
…The fact of prior offending will, in most if not all cases, invite consideration of the question of whether the person in question in fact presents some risk to the Australian community and the starting point in that consideration will invariably be the fact of the prior offending. But that is all. The statute does not, of itself, supply an answer to the factual question of whether a particular visa holder has a propensity, however slight, to re-offend.
82 The Minister had regard to a wide range of facts and circumstances that suggested that the risk of the appellant reoffending in a similar manner in the future was highly unlikely, if not non-existent. In summary, those facts and circumstances were:
(a) the appellant committed the offence when he was 17 years old and was immature (reasons [77] and [99]);
(b) the appellant's offending was the result of several factors, including particularly a difficult childhood as his family fled from war in South Sudan, trouble fitting in to life in Australia as an African, being bullied in school, turning to drugs and alcohol, and the appellant's brother being killed in a car accident (reasons [74], [79], [80], [81], [82] and [99]);
(c) the appellant acknowledges the seriousness of his offending and is remorseful (reasons [73], [75]-[76] and [99]);
(d) all other offences committed by the appellant were minor and not violent (reasons [78]);
(e) an examining psychologist, Dr Grech, expressed the opinions that the appellant's "prospects for long term rehabilitation are considered excellent and, notwithstanding his previous offending, the likelihood of losing emotional control in future appears to have decelerated substantially as he has learned skills for dealing with anxiety, stress and anger", the appellant "demonstrated maturity and personal responsibility for his past conduct at assessment" and "has consciously decided to be a responsible member of society in future", and "[b]ased on all available information, the appellant has a bright future in Australia" (reasons [92]);
(f) the appellant had served his prison sentence and exhibited generally good behaviour in prison (reasons [100]);
(g) the appellant's family supported the appellant during his imprisonment and expressed their intention to support the appellant upon release from detention (reasons [84], [86]);
(h) the appellant also has strong support from the South Sudanese community in Australia (reasons [91]); and
(i) the appellant has voluntarily completed several rehabilitation and personal development courses (reasons [93]).
83 Against that, the Minister's reasons refer to only two matters that could possibly be relied on in support of the ultimate finding that the appellant was a risk of reoffending.
84 As to the first, the Minister noted that the appellant committed the offence of murder when on bail for lesser offences and, at the time of sentencing, the sentencing judge remarked that this fact indicated a blatant disregard for the system of law under which bail was granted, suggested that the appellant has small regard for the law and little intention of obeying its commands and undermined, to some extent, any confidence in the appellant's ultimate rehabilitation (reasons [97]). The Minister's reasons do not, however, expressly connect the sentencing judge's remarks to the Minister's assessment of the risk of reoffending. More significantly, the reasons fail to consider whether and to what extent those observations, which concerned the circumstances in which the crime was committed (when the appellant was 17 years old), continued to bear upon an assessment of the appellant's risk of reoffending nearly 15 years later when the Minister made his decision. In an appeal against the severity of the sentence, the Victorian Court of Appeal concluded that it was open to the sentencing judge to make those remarks, but the circumstance (of being on bail) had limited significance having regard to the appellant's youth and background at the time of the offence. The Minister did not refer to that finding of the Court of Appeal, or otherwise consider the ongoing relevance of the sentencing judge's remarks in light of the passage of time. In those circumstances, we do not consider that this aspect of the Minister's reasons provides a probative basis for a conclusion that the appellant presents a risk of reoffending by murder or similar offence.
85 As to the second, the Minister stated that he was guarded about the prospect of the appellant relapsing into substance abuse if released into the community (reasons [100]). It can be accepted that the appellant's propensity to abuse drugs or alcohol was a relevant consideration in assessing the likelihood of reoffending, given the appellant's admission that he had abused drugs and alcohol as a teenager and he was drunk and on drugs at the time of the murder (reasons [74], [99]). However, the Minister provides no basis in his reasoning for being guarded about the prospect of the appellant relapsing into substance abuse. The Minister found that the appellant had a history of alcohol and drug abuse as a teenager (reasons [29]), but makes no other finding concerning the causes of the substance abuse, whether those causes continued to exist or how the appellant's circumstances had changed since he was a teenager (at the time of the Minister's decision, the appellant was 33 years old). The reasons do not refer to any evidence of ongoing drug or alcohol use. Conversely, the reasons refer to the appellant's participation in drug and alcohol courses (reasons [93]). There is nothing in the Minister's reasons that provide any support for a finding that the appellant was a risk of relapsing into drug or alcohol abuse which might then provide a foundation for a finding that the appellant was a risk of reoffending.
86 With great respect to the primary judge who reached a contrary conclusion, in our view the Minister's reasons do not disclose a probative basis for a finding that there was a risk that the appellant would reoffend in a similar manner. In our view, the Minister's conclusion must be described as speculative, based on mere conjecture or supposition unsupported by evidence. While the power given to the Minister by s 501CA(4) is very broad, its exercise is subject to the condition that it be exercised reasonably and rationally. Findings and conclusions must have an evident and intelligible basis, and not be the subject of mere speculation.
87 The conclusion reached in this case does not present any conflict with other decided cases. As noted earlier, in a number of decisions the Court has concluded that a finding that a visa applicant was a risk of reoffending was legally unreasonable or lacked a probative basis: see for example Muggeridge and Logan. In other cases, the Court has rejected that contention. Each case turns on its own facts and, it should be added, the particular grounds of review advanced in the case. In argument, the Minister referred to the following Full Court decisions, but each are distinguishable from the present:
(a) The facts in AZAFQ present a stark contrast to the present case, where the visa applicant had breached numerous court orders, had served multiple terms of imprisonment and suffered numerous relapses into drug use (as set out in the Minister's statement of reasons reproduced at AZAFQ [12]). The Court concluded (at [54]):
The Minister's statement of reasons reveals that he did take into account the risk of harm to the Australian community. This occurred in the specific context of the Minister considering whether or not there was a risk that the appellant would re-offend. The Minister set out in [18] of his statement of reasons the basis upon which he concluded that the appellant posed an ongoing risk of re-offending notwithstanding that there were some factors which he acknowledged served to reduce that risk, including the appellant's rehabilitation in prison and his renewed family and community support. The Minister concluded, however, that taking into account other facts, such as the appellant's long criminal history, his previous violent offences and his untested ability to refrain from substance abuse in the community, there was an ongoing risk of re-offending, which the Minister described in [39] of his statement of reasons as an "unacceptable risk".
(b) So too in Tran, the visa applicant had a lengthy criminal history. The Assistant Minister's summary of that history was reproduced in the reasons of Greenwood J at [54] and [55] (in dissent in the result, but whose narrative of background facts was adopted by the majority, Charlesworth and O'Callaghan JJ, at [152]) and was as follows:
Mr TRAN's criminal history in Australia commenced in 1993 at age 18 with a conviction for breaking and entering with intent. Mr TRAN has a number of dishonesty offences including more than five break and enter offences, a number of drug related offences (prior to April 2002) including 'trafficking, bring/introduce prohibited drug into place of detention and possesses prohibited drug'. Mr TRAN also has two counts of 'assault officer in execution of duty' (in 2002), and a range of driving related offences. Mr TRAN's criminal history also includes breaches of judicial orders.
I have formed the opinion that Mr TRAN has been a frequent offender commensurate with a 'drug addict who committed offences in order to fund his addiction'. I find that the sentences Mr TRAN received are a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered that the court viewed the offending as very serious. I consider that the cumulative effect of his offending conduct has imposed a significant cost upon the Australian community, through the expenditure of police and court resources.
The Assistant Minister found that there was a likelihood that Mr Tran will reoffend (see para 98 of the Assistant Minister's reasons, reproduced at Tran [61]). Justices Charlesworth and O'Callaghan concluded that there was an evident and intelligible basis for the Assistant Minister's conclusions (at [181]). The facts on which that conclusion were reached are materially different to the present case.
(c) In YKSB, the appellant had committed a number of offences over time, including assaulting a police officer in April 1979 and committing a series of sex offences against children in the period between 1982 and 1990 (see YKSB at [2] and the further description of the offending given by the primary judge in YKSB v Minister for Home Affairs [2020] FCA 476 at [20]). The sole ground of appeal differed from the present case and raised the question whether the decision maker (the Administrative Appeals Tribunal) had given proper consideration to a submission advanced by the appellant. In relation to the Tribunal's assessment that the appellant represented a "low to moderate risk of reoffending", the Full Court observed (at [14]) that the Tribunal's conclusion was based on evidence concerning the appellant's attitude to his offending which had been addressed by a psychologist, Dr Ducat, such as to necessitate further assessment and possible treatment.
88 The Minister did not contend that the finding on this issue, the risk to the Australian community, was not material to the Minister's decision. It was stated as a finding at [100] and [101] of the reasons, and repeated in the Minister's overall evaluation at [109] and [111]. We therefore conclude that the Minister's erroneous finding on that issue involved jurisdictional error.
89 For the foregoing reasons, we uphold the second ground of appeal.