Daniell v Minister for Home Affairs

1. The application be dismissed.
2. The applicant pay the respondent's costs of and incidental to the application, to be fixed by a registrar if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 Mr John Hilmar Daniell, is a citizen of the United Kingdom. On 29 June 2018, in the District Court at Brisbane, he was convicted on pleas of guilty of 11 counts of indecent treatment of a child under 16 years, who was under the age of 12 and his lineal descendant, three counts of rape and one count of indecent treatment of a child under the age of 16, who was his lineal descendant. In respect of each of the offences of rape, Mr Daniell was sentenced to imprisonment for five years. In respect of each other offence, he was sentenced to imprisonment for two years. The sentences were ordered to be served concurrently. The Court ordered that the period of imprisonment be suspended after he had served 20 months with an operational period of five years being fixed. 2 The lineal descendant in question was Mr Daniell's granddaughter. The offences occurred over the course of over a decade, from when she was four until when she was 14. The sentencing judge, his Honour Judge Moynihan QC, described the offending conduct as "abhorrent … brazen, persistent and in a gross breach of trust". He found that the child had suffered "substantial harm and has been adversely affected as a result". 3 On and from 1 September 1994, Mr Daniell had been taken to hold an Absorbed Person visa, under the Migration Act 1958 (Cth) (the Act). On 6 February 2020, this visa was cancelled under s 501(3A) of the Act. A necessary consequence under the Act of the cancellation of Mr Daniell's visa was that he was amenable to deportation to the United Kingdom. 4 Mr Daniell was given the usual notice of his right to make a representation to the Minister for Home Affairs (Minister) to exercise his power under s 501CA(4) of the Act to revoke that visa cancellation. He made such a representation. On 1 September 2020, the Minister, the Honourable Peter Dutton MP, acting personally and for reasons which he furnished in writing to Mr Daniell, decided not to revoke that cancellation. 5 Mr Daniell has now applied to the Court for the judicial review of the Minister's decision not to revoke the cancellation of his visa. 6 On the facts so far recited, and especially given that it is a judicial, not merits, review jurisdiction which Mr Daniell has invoked, one might be forgiven for thinking that the decision entailed an entirely unremarkable exercise of Ministerial discretion. To reveal something further of the facts before the Minister is to challenge such complacency. 7 Mr Daniell was born in the United Kingdom in 1939. He came to Australia in early 1953, at age 13, as a migrant with his now deceased parents. He has not since returned to the United Kingdom and has neither family nor social ties there. He was 81 at the time when the Minister made his decision. 8 Mr Daniell is married. He and his wife married in 1961. Mrs Daniell is now 80 years old. Notwithstanding his offending conduct, she has stood by her husband and, until he was placed in immigration detention as a sequel to the cancellation of his visa, cared for him at home. 9 Mr Daniell, as the Minister found, has a daily need for her care when at liberty. He "suffers from multiple medical conditions: ischaemic heart disease with two previous bypass operations and six previous heart attacks; an abdominal aortic aneurysm, hypertension, hypercholesterolemia, type II diabetes and atrial fibrillation". Mr Daniell also, to my direct observation during the course of the trial, suffers from hearing loss (a subject to which further reference is made below). He commenced working in Australia at age 19 and continued in employment until age 53 when a heart attack forced him to give up work. 10 The Minister also accepted that, "Mrs Daniell suffers from high blood pressure, arthritis and hearing loss; she is also under the care of an ophthalmologist". He accepted that the relationship between Mr and Mrs Daniell was, and remained, a close one. They have four adult daughters, seven adult grandchildren and one great-grandchild. 11 Mr Daniell advanced the following as grounds of review: 1. The Respondent's decision was affected by jurisdictional error on account of a breach of procedural fairness, in that the Respondent failed to consider in any meaningful way, the emotional and physical hardship that would be suffered by the Applicant's wife, if he were to be removed to the United Kingdom. Particulars (a) The Applicant's wife is an Australian citizen, who has lived in Australia her entire life, and is a completely innocent party; (b) If the decision is not revoked the Applicant's wife, who is 80 years of age will suffer either because her family will be broken up, or because she will be forced to move overseas with her husband. 2. The Respondent's decision was affected by jurisdictional error on account of a breach of procedural fairness, in that the Respondent failed to consider in any meaningful way, the extent of impediments the Applicant would face if he were to be removed to the United Kingdom. Particulars (a) The Applicant is dependent on his wife for daily care, and he does not know anyone in the United Kingdom, which will impact his physical and mental health, and leave him socially isolated; (b) Given the Applicant's age and medical conditions, it would be unlikely that he would obtain paid employment in the United Kingdom, and without private assets, his removal from Australia would cause him financial hardship; which in turn, would hinder his access to the necessities of life in the United Kingdom. 3. The Respondent's decision was affected by jurisdictional error because it placed too much weight on the nature of the Applicant's offending, and as a result failed to give sufficient weight to the factors in favour of revocation of the cancellation of the Applicant's visa. 4. The Respondent's decision was affected by jurisdictional error because it unreasonably or illogically failed to give weight to, or rejected the 'almost non-existent' risk of the Applicant re-offending. 12 Mr Daniell appeared on his own behalf at the trial. Because of prevailing public health restrictions, the trial had to be conducted remotely via audio-visual means, rather than via an appearance in person in court. Mr Daniell conducted himself with great restraint and much dignity, even though, as was so very obvious, even with the limitations of the medium mentioned, he was under great emotional strain. He adopted as his submissions the points made in the grounds of review. 13 There was a time, and it was as recent as earlier this century, when a person in Mr Daniell's circumstances, namely, a person having the status of a British subject, would not have been regarded by a majority of the High Court of Australia (High Court) as an alien: Re Patterson; Ex parte Taylor (2001) 207 CLR 391 (Re Patterson). On that basis, s 501 of the Act would have no application at all to Mr Daniell and he would not have been amenable to visa cancellation and deportation. 14 The reason for such a conclusion would have been that supplied by Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162, at [25]: [A] law which purports to expel, or authorise the expulsion of, a person who has become absorbed into the Australian community, so that the activity of immigration has ceased, will not bear the character of a law with respect to immigration. If, however, the person in question entered as an alien, and that status has not altered, then such a law may be supported by the power to make laws with respect to aliens. [footnote reference omitted] 15 Such is the length of time Mr Daniell has spent in Australia since 1953 and the deep associations he has with Australia, the only possible conclusion, as at 2020, is that he has become absorbed into the Australian community. Thus, in application to him, s 501 of the Act could not be supported by the legislative power conferred, upon the Parliament by par (xxvii) (immigration and emigration) of s 51 of the Constitution but only by par (xix) (naturalization and aliens). Legislative competence for authority to deport him is entirely dependent upon his having the status of an alien. 16 The views expressed by a majority in Re Patterson were contrary to those earlier expressed in Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 (Nolan). On the basis of those earlier views, Mr Daniell was an alien. In the later case, Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28, Nolan was confirmed to be authoritative. 17 On the form adopted by the Minister's Department for the purposes of making a representation that a visa cancellation should be revoked one question posed is, "Do you identify as Aboriginal or Torres Strait Islander?" Had Mr Daniell answered, "Yes", a question may then have arisen as to whether, in light of views recently expressed by the majority in Love v Commonwealth (2020) 94 ALJR 198, and notwithstanding that he was born overseas and had never acquired Australian citizenship, he was not an alien and thereby not amenable to visa cancellation and deportation. However, Mr Daniell answered "No" to this question. 18 Untutored by the course of authority, to read the preamble to the Commonwealth of Australia Constitution Act 1900 (Imp), with its reference to "one indissoluble Federal Commonwealth under the Crown of the United Kingdom" and the repeated references in the Constitution, which is found in that Act, to "subject of the Queen", one might perhaps wonder how it is that a British subject could ever be regarded as an alien and how someone who was neither born in Australia nor even a British subject could ever be regarded as a non-alien? It is not, however, for me to question the authorities that have resulted in the position just described, only faithfully to apply them. I have undertaken this survey of authority because Mr Daniell was unrepresented and because it seemed to me, not just from his brief submissions but also from his demeanour, that he was understandably wondrous and despairing as to how it was, after spending the better part of seven decades in Australia, he found himself in immigration detention, thus separated from the care of his wife and amenable to deportation and perhaps separation forever from her. Mr Daniell is an alien. Section 501 of the Act applied to him. The Minister was thus empowered to make, in response to the representation made to him, a discretionary value judgement under s 501CA(4) of the Act as to whether to revoke the cancellation of Mr Daniell's (deemed) visa. 19 In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 41, Mason J observed of the jurisdictional error ground of unreasonableness that, "both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance". That statement has never later been disapproved by the High Court. 20 Later, in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (SZVFW), Kiefel CJ stated, at [10]: 10. In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. [footnote references omitted] 21 Also in SZVFW, at [82], in their joint judgment, Nettle and Gordon JJ stated: 82. Nor is the abuse of statutory power limited to a decision which may be described as "manifestly unreasonable", or to what might be described as an irrational, if not bizarre, decision that is so unreasonable that no reasonable person could have arrived at it. A conclusion of legal unreasonableness may be outcome focused - where, for instance, there is no "evident and intelligible justification" for the decision. As Gageler J explained in Minister for Immigration and Citizenship v Li, "[r]eview by a court of the reasonableness of a decision made by another repository of power 'is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process' but also with 'whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law'". [footnote references omitted] 22 On the basis of that observation and these statements, it is not necessarily the case that Mr Daniell's grounds of review are but an impermissible solicitation for this Court to review on the merits a discretionary value judgment made by the Minister. 23 However, an allegation in a ground of review in a judicial review application that a jurisdictional error is to be found in a "failure to consider in a meaningful way" a particular factor is fraught. Such an allegation is not materially different to an allegation that an administrator has not given "proper, genuine and realistic consideration" to a particular factor. In Swift v SAS Trustee Corporation [2010] NSWCA 182, at [45], Basten JA (with whom Allsop P agreed), in a passage later cited with approval by the High Court in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, at [30], observed of such an allegation: That which had to be properly considered was "the merits of the case". Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review. 24 The reasons furnished by the Minister for his decision disclose that each of the subjects mentioned by Mr Daniell in his representation was expressly considered by the Minister. It is just not possible to read the Minister's reasons other than as a comprehensive engagement with each of the points developed in Mr Daniell's representation as to why it was that the visa cancellation should be revoked, with the circumstances of the offending conduct and with an assessment of a future risk of reoffending. 25 As to risk of future offending, at first blush it might seem a large conclusion that an octogenarian with Mr Daniell's diverse health conditions and the salutary experience of the consequence of past offending conduct presented even a low risk. However, the Minister made these statements against the background of offending conduct that had occurred over 11 years between when Mr Daniell was aged 64 and aged 75, "I accept that his age and infirmity tend to reduce any risk of reoffending, but I do not accept that they totally preclude any form of sexual offending", at [45], and "I agree that the offending was opportunistic, but not that Mr Daniell could only offend against a family member. I consider that his repeated offending demonstrated a sexual interest in vulnerable children and that if presented with a comparable opportunity he could reoffend, even if the victim had no personal connection to him", at [46]. Given a course of sustained offending even when increasingly elderly, such reasoning cannot be characterised as irrational or illogical. 26 The Minister has expressly taken into account the age and health conditions of Mr and Mrs Daniell, their absence of ties to the United Kingdom, their length and depth of association with Australia and the prospect of their separation. His reasons disclose that he logically, rationally and, with respect, sympathetically, weighed such considerations against offending conduct which, certainly permissibly, he characterised as very serious and his assessment of risk. In short, he made one of those hard value judgments which, under the Act, Parliament has consigned to him as one of what the Constitution (s 64) terms "the Queen's Ministers of State for the Commonwealth". The making of such evaluative judgments is not consigned to judges appointed under Ch III of the Constitution. 27 For those of, or knowledgeable of, the Christian faith, that judicial stance might provoke the drawing of an analogy with the Roman Governor, Pontius Pilate, symbolically washing his hands in respect of the fate of Jesus Christ (Gospel of Matthew, chapter 27, verse 24). In point of law, it is but a manifestation of the separation of legislative, executive and judicial powers for which the Constitution provides and a consequential recognition of the proper role of a reviewing court, described by Sir Gerard Brennan in Attorney-General (NSW) v Quin (1990) 170 CLR 1, at 35, with particular reference to Marbury v Madison 5 US (1 Cranch) 137 (1803), at 177. 28 Where reasons for a particular administrative decision, hard though it may be, are logically and rationally expressed by any administrator, all the more so in respect of a decision made personally by a Minister, it will be very difficult indeed to conclude that the outcome is unreasonable. It is nothing to the point that some might have made a different decision or even that some might characterise it as cruel or inhumane others might perhaps regard the decision as a response fitting the crime. However, such emotive epithets are apt to distract from the judicial function in a case like the present. 29 Very recently, in Minister for Home Affairs v DUA16 (2020) 95 ALJR 54, at [26], the High Court emphasised that the threshold for a conclusion as to unreasonableness is "usually high" and that the "conclusion is drawn 'from the facts and from the matters falling for consideration in the exercise of the statutory power'". It was an uncontroversial given in this case, in light of the sentence imposed upon him, that Mr Daniell failed the character test for which s 501 of the Act provides. The matters falling for consideration in the exercise of the power conferred by s 501CA(4) of the Act included the offending conduct, the sentence imposed and the reasons for that sentence, the risk of reoffending presented and the issues raised by the representation made by Mr Daniell. All of these matters were evaluated by the Minister. Were I to conclude that his reasoned decision was unreasonable, I would repeat an error which the Full Court discerned in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 and Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158. That is something I must not do. The outcome of the Minister's decision makes the case a hard one but the reasons for it are logical and grounded in material reasonably capable of supporting the conclusion. One might, with respect, question its proportionality but it must for reasons given above be conceded to be within a range of possible outcomes. In his separate judgment in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, at [30], French CJ, taking up a prosaic expression used in academic commentary, allowed that irrationality might be found in taking a sledge hammer to crack a nut. Some might think the present case exemplifies that but the later authorities in the High Court and in the Full Court of this Court to which I have referred highlight that such a case must be a rare one indeed and the present is not such a case. 30 For these reasons, which take up and adopt as correct submissions made on behalf of the Minister, the application must be dismissed. 31 Though it can have no impact upon the outcome of the proceeding, one procedural aspect of this case is deserving of particular mention, and related attention by the Minister, to ensure that the result is not repeated. As mentioned, Mr Daniell has an obvious hearing difficulty and circumstances dictated that the trial be conducted by an audio-visual link to the facility where he is detained. The Minister has responsibility for that facility. As a matter of prudence, a rehearsal of the audio-visual link was conducted in advance. Though Mr Daniell was acting on his own behalf, the Minister did not ensure that Mr Daniell was present, at and participated in, that rehearsal. Instead, at the detention centre end, an officer with no evident hearing difficulty participated. On that basis, the link was regarded as satisfactory for an exercise of the judicial power of the Commonwealth, lawfully invoked by Mr Daniell when he filed his application in this Court. Upon the commencement of the trial, it became immediately obvious that Mr Daniell was having hearing difficulties. That dictated that the case be stood down and, to my direct observation, added to the stress to which Mr Daniell was already subject. As much by happenstance as good public administration, it proved possible to find an alternative, satisfactory link such that the hearing did not have to be adjourned. When, by his officers, the Minister takes a person into immigration detention, he assumes particular responsibilities in respect of them. It is the Minister's duty to facilitate, not to hinder or obstruct, a detainee's ability to avail himself of the opportunity to be heard that is a requirement for the exercise of judicial power. I find it impossible to see how anyone responsibly exercising custodial responsibilities in relation to Mr Daniell could have failed to note his hearing difficulty. As it was, the Minister, by his officers and via his solicitor, neither drew such a difficulty to the Court's attention at an interlocutory stage nor presented Mr Daniell at the rehearsal so that such a difficulty might be discerned by court officers. It is not just a hope but also a matter of expectation that such lamentable lapses are not repeated. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.