Eden v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT (EX TEMPORE - REVISED FROM TRANSCRIPT) 1 There is something quite heinous about the sexual molestation of any person. Especially that is so when the perpetrator is a taxi driver and the victim is a young woman and is his passenger. Perhaps that is because common experience tells one that often after socialising with friends in the evening, a young woman will choose to go home by taxi rather than by other means, not just for convenience but also because of a perception that it is a safe option. So there is an element of betrayal of trust in a sexual assault by the driver on the passenger. 2 In 2009, just such an assault was committed on a young woman by the applicant, Mr Mas Eden (Mr Eden). The resultant sentence passed on him in 2011 to that offence enlivened a discretion on the part of the Assistant Minister for Immigration and Border Protection, Senator, the Honourable Michaelia Cash, (the Minister), personally to cancel Mr Eden's visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (the Act). Senator Cash is one of those whom s 64 within Ch 2 of the Constitution terms "the Queen's Ministers of State for the Commonwealth". 3 On 17 April 2015 the Minister chose to exercise her discretion so as to cancel Mr Eden's visa. That made him an unlawful non-citizen, liable to detention and subsequent deportation. 4 In Mr Eden's case his immigration detention occurred when he was roused at his family home at Pimpama, south of Brisbane, at about 5am in the morning on 30 April 2015 when officers acting on behalf of the Commonwealth arrested him and took him into detention. He was not served with a copy of the Minister's decision and her reasons for that decision in respect of the cancellation of his visa until the following day, 1 May 2015. Some might, perhaps, regard the adjective heinous as also applicable, albeit for different reasons, to this type of behaviour on behalf of one of the Queen's Ministers of State, but that does not mean that it is relevant to the judicial review of that Minister's decision. 5 Further, given that absence of relevance, there may be circumstances beyond those disclosed on the evidence in this case which would cast a different complexion on that conduct. It is always necessary to remember in a case of this kind that, under Ch 2 of the Constitution, the general administration of legislation, materially the Act, is consigned to the Queen's Ministers of State by His Excellency the Governor-General, not to the judiciary. 6 Mr Eden's offending conduct neither rendered the Minister devoid of legal obligation in the exercise of her discretion nor deprived him of the remedy of seeking, on the basis of alleged jurisdictional error, the judicial review of the decision made by the Minister in the exercise of that discretion. In Stretton v Minister for Immigration and Border Protection (No 2) [2015] FCA 559 at [7] (Stretton), I referred to observations made by the Honourable John Toohey AC extrajudicially in relation to considerations which attend the invocation and exercise of the judicial power of the Commonwealth in a case such as this. Those observations are just as apt in this case. 7 The only jurisdictional error alleged in the application as amended is that the cancellation of Mr Eden's visa resulted from the unreasonable exercise of the Minister's discretion. If that error is present, it renders the Minister's decision an illegal act. The Minister in her reasons made reference to the: Government's commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens. Even so, and as the learned authors of De Smith's Judicial Review (Lord Wolf, Jowell QC J, Le Sueur A, Donnelly C and Hare I, De Smith's Judicial Review, (7th ed, Sweet & Maxwell, 2013)) (De Smith's Judicial Review), correctly observe at paragraph 11-017: No mandate from the electorate can serve as a justification for an illegal act. The presence in the Constitution of s 75(5) and the not materially different jurisdiction conferred on this Court by s 476A of the Act attest to that correctness. 8 Mr Eden was late in the filing of his judicial review application. The Minister, with all of the fairness the Court is entitled to, and overwhelmingly does receive from a model litigant such as the Minister, conceded that Mr Eden had given a reasonable explanation for his delay. As I disclosed to the parties at the commencement of the hearing yesterday, consideration of their written submissions in conjunction with that explanation persuaded me that the case was one which warranted an extension of time. The case was arguable and the explanation was reasonable. In those circumstances, I decided to grant Mr Eden the required extension of time. The case then proceeded to hearing on its substantive merits. 9 As with Stretton, this case raises in an acute way the obligations and the limitations which attend the exercise of and interface between the executive and judicial power of the Commonwealth. There are two overarching principles which are applicable in respect of the judicial review of a decision made in the exercise of a discretionary power vested in the Minister. Firstly, the Court is concerned with the legality of that decision, not with its merits. The importance of observing a principled restraint in the exercise of a judicial review jurisdiction cannot be overemphasised, for all of the reasons given by Brennan J (as his Honour then was) in Attorney-General for New South Wales v Quin (1990) 170 CLR 1 at 38; see also to like effect Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 42 by Mason J (as his Honour then was). Secondly, where, as here, reasons have been given by a Minister for the decision under review, the other overarching principle which must be observed is that those reasons must never be read critically with an eye for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. 10 Unsurprisingly, Mr Eden placed reliance in his submissions on Stretton, but this case is not to be decided by comparing and contrasting its circumstances relative to those at large in Stretton. So to do would be to substitute an outcome on particular facts for principle. Instead, the case must be decided by the application of principle in respect of the pleaded ground to the decision made in the factual circumstances of this case. 11 It is necessary, now, further to detail the facts. The reasons given by the Minister to Mr Eden contain a comprehensive recitation of the facts are annexed to these reasons. Some summary reference should be made to certain particular facts. Mr Eden was born on 29 July 1964 in Iran. He has come subsequently to acquire citizenship in New Zealand. He is not an Australian citizen. His entitlement to reside in Australia is dependent upon his possession of what is known as a Class TY Subclass 444 Special Category (Temporary) Visa issued under the Act. It is that visa which the Minister chose in the exercise, as she saw fit, of her discretion to cancel. Though there is no evidence that Mr Eden held any other visa, the operation of the Act upon the Minister's decision was such that if he did hold any other visa, it too was cancelled. 12 The Minister's discretion was enlivened in the event that she reasonably suspected that Mr Eden did not pass the character test. I referred to the detail of that test in Stretton and shall not repeat what is there stated. Suffice it to say, definitionally, in the circumstances, which materially included Mr Eden's being sentenced to imprisonment for one year on 16 May 2011 in the District Court (Judge Koppenol) at Brisbane, he could not satisfy the character test. So much was accepted on his behalf in the judicial review application. 13 In her reasons, at paragraph 9, the Minister stated: In considering the nature and seriousness of Mr Eden's criminal offending I consider that sexually based offences are viewed very seriously. The Minister is perfectly entitled in the administration of the Act to form that subjective view. Indeed, she may well have been encouraged in the formation of that view by the submission made to her by her department. In that regard, civil servants have a particular responsibility to observe objective and dispassionate detachment in cases such as the present. For reasons which I am about to give, I am quite satisfied that that particular detachment was not observed in the submission made to the Minister in relation to the character, objectively, of Mr Eden's offending conduct. Why is that so? 14 The answer to that depends upon a close scrutiny of the conduct itself and the approach to that conduct by a State judicial officer in the exercise of State judicial power in sentencing Mr Eden. To understand that, it is necessary to set out in full the sentencing remarks of Judge Koppenol. These record the facts of the offending conduct and how it came to be dealt with by that court upon a plea of guilty: His Honour: You can stand, please, Mr Eden. Mas Eden, you have pleaded guilty today to one count of sexual assault. On December 5, 2009, you were working as a taxi driver with B & W Cabs. The complainant, a 20 year old woman, had walked form the Valley to Kangaroo Point on her way home to Hawthorne. She'd been with friends in the Valley that night and had a few drinks but was unable to catch a taxi in the Valley so she started walking. You picked her up in your taxi at Kangaroo Point. You were 45 years old at the time. As you drove towards Hawthorne, you groped the complainant. You groped her breast under her bra and you also rubbed her groin under her underwear. You did that a couple of times. You thought that the girl was consenting and you were hoping for consensual sex. The complainant, however, did not consent but did not ever say no to you although she did ask you to stop the car at various places because she told that that's where she lived. I've seen the stills of the video footage taken in the car. I think they are equivocal. They do not, to me, indicate that your assault on a female complainant was consensual or non-consensual but I accept from your plea that you accept that your understanding that the complainant passenger was consenting to sexual activity with you was one which was not reasonable. You are a refugee from Iran and you now work as a truck driver. You voluntarily left taxi driving after this incident. You have a wife and a young child who are at Court today to support you. It is encouraging for you that your wife is standing by you, having regard to what occurred on the day concerned. A victim impact statement from the complainant was tendered. It satisfies me that your actions have had a traumatic effect upon her and that she is now very wary of catching taxis. Actions can often be misinterpreted and I think this is probably a case like that. When you started fondling the girl, I think you got the impression that she was happy for you to do that but that was not so. I've considered all the submissions which were made, both by Mr Bain for the Director of Public Prosecutions and Mr Wilson on your behalf and also, of course, your plea of guilty. I note that you have, through your counsel, apologised to the victim for your actions. I'm not sure if the DPP can convey that to the complainant, but if that is possible I think that that would be appropriate. In all of the circumstances, the orders that I will now make by way of sentence are as follows: (1) I order that you be imprisoned for 12 months; (2) I order that the whole of that period of imprisonment be suspended forthwith. (3) You must not commit another offence punishable by imprisonment within two years if to avoid being dealt with for the suspended period of imprisonment. 15 In short, although the District Court imposed a sentence of one year's imprisonment, that sentence was wholly suspended for a period of two years. That period had passed in its entirety and without any hint on the evidence of offending conduct of any sort by Mr Eden by the time that the Australian Federal Police got around to informing the Minister's department of the proceedings in the District Court in 2011. That information was not provided until January 2014. Even then, it was, over a year, until 17 April 2015, when, in the administration of the Minister's department, the matter was decided by her. 16 Delay was one factor to which Mr Eden pointed in his submissions as relevant to the assessment of whether or not the pleaded ground of unreasonableness was made out. So it is. 17 Of course, for all the reasons by which I commenced these reasons for judgment, there is a heinous quality in Mr Eden's offending conduct on 5 December 2009. The learned District Court judge was plainly aware of this from his Honour's sentencing remarks. His Honour also formed the view, having looked at video footage, available these days as a result of cameras in taxis, that the circumstances which came to be charged were equivocal in their criminality. His Honour also took into account that Mr Eden's confessed criminality had had a traumatic effect upon the victim and that she was now very wary of catching taxis. His Honour further observed that "actions can often be misinterpreted and I think this is probably a case like that". 18 Such matters obviously informed the exercise of his Honour's sentencing discretion. Objectively, and it is necessary to emphasise that, this was not a very serious offence. The sentence imposed in the exercise of State judicial power is eloquent in that regard. That particular eloquence has been lost on the Minister. Inferentially, a reason for that is very probably that it was lost on those advising her. Whilst regard to the Minister's reasons discloses that the nature of the offending conduct and the sentence were taken into account, the conclusion reached was not that this, objectively, was not serious offending conduct. 19 Mr Eden's wife was, at the time when he was sentenced, in court to support him. The judge, understandably, considered that her standing by him was encouraging. She continues to stand by him to this day. That was a fact known to and found by the Minister. She, too, is a citizen of New Zealand, rather than of Australia. There is no suggestion that her right of residency in Australia is in any way in jeopardy. Since the offending conduct, Mr Eden and his wife have come to have a child under their care, who is now aged five. That child, too, is a citizen of New Zealand rather than of Australia, but, again, there is no suggestion that the child's residency in Australia is in any way in jeopardy. 20 Save for this, there is a question, and on the evidence it looks as if it will be resolved by their remaining here, whether the child and the wife will return to New Zealand in the event of Mr Eden's deportation. The evidence and the Minister's finding is that they will remain here. In other words, this is a case, as the Minister appreciated, where deportation as a sequel to visa cancellation would necessarily carry with it the consequence of severing the day-to-day family conduct between husband and wife and father and child. 21 There are other findings of the Minister which should be noted. She assessed that the overall risk of his re-offending was low. In that regard, as she was entitled, she took into account Mr Eden's decision to cease being a taxi driver. 22 The Minister also found that Mr Eden provided the sole means by which support was given to his wife and their child. She further found that Mr Eden was committed to being a positive and supportive role model for his son. Unsurprisingly, the Minister also found that deportation would cause not just emotional but also financial distress to the child and that it would disrupt the relationship between father and son. The Minister further found, and indeed classed it as a primary consideration, that it was in the best interests of that child for Mr Eden to remain in Australia and for her not to cancel his visa. 23 Other findings made by the Minister in her reasons were that, during Mr Eden's over seven year period of residence in Australia (he first arrived in 2007), he had been actively employed and contributed to the Australian community by paying taxes. She further found that, over that time, Mr Eden had developed, both through family, business, property ownership and payment of taxes, ties to the Australian community. The Minister had before her, and did not gainsay, a character reference which attested to Mr Eden's being a dedicated and loving family man who had a good work ethic. She accepted that deportation would necessarily terminate Mr Eden's income-earning business in Australia. 24 The Minister's reasons must, of course, be read as a whole, but those highlighted above are factors upon which particular reliance was placed on Mr Eden's behalf in advancing the pleaded ground of unreasonableness. 25 For the avoidance of doubt, it should be recorded, as I did in Stretton, that even though Mr Eden's sentence of imprisonment was wholly suspended, it nonetheless satisfied the statutory test posited for having a "substantial criminal record". It is important, when assessing the objective seriousness of particular offending conduct, not to be misled by Orwellian terminology in a statute relation to the character of particular conduct. That the descriptor "substantial criminal record" is used does not mean that any sentence for offending conduct falling within that descriptor is automatically and objectively serious. 26 Reference now needs to be made to matters of principle. In this regard, I stated in Stretton at paragraph 52 the following: 52 In an article recently published in the Australian Bar Review, another retired judge of the High Court, the Honourable WMC Gummow AC has observed, "To describe the reasoning in an administrative decision as irrational or unreasonable may be mere persiflage.": (Gummow WMC, "Rationality and reasonableness as grounds of review" (2015) 40 Australian Bar Review 1). There is, as the learned author notes, high authority for the proposition that such a description of a decision may "merely be an emphatic way of disagreeing with it" (Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [34]) but is without legal consequence. Yet, in context and as Rangiah J highlighted in Moana, at [74], an administrative decision may also be unreasonable in the sense outlined by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] (Li): 76. As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. [Footnote references omitted] In that paragraph, I also set out a passage from the joint judgment of Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 36 (Li). I also made reference to the adoption in that case by French CJ at paragraph 30 of a pithy turn of phrase used by Mr Airo-Farulla "Reasonableness, rationality and proportionality" in Groves M and Lee HP, Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007), page 215: "Taking a sledgehammer to crack a nut". 27 In this case, unlike in Li, and for that matter in Stretton, Mr Eden's submissions did traverse whether proportionality was a factor of relevance in the determination of unreasonableness. In De Smith's Judicial Review, at paragraphs 11-028 and following, the learned authors opine that what constitutes unreasonableness in terms of jurisdictional error may be categorised as follows: (a) unreasonable process; (b) violations of common law rights or constitutional principles; and (c) oppressive decisions. It is certainly possible to find examples which would fit each of these categories, but to regard them as mutually exclusive may be to overemphasise categorisation. By that I mean that unreasonable process may well lead to an oppressive outcome. For example, this case is concerned in part with process in relation to the advice furnished to the Minister about the seriousness of the offending conduct, but in the end it is focused upon outcome. 28 In The Queen (on the application of Khatun) v Newham LBC [2005] QB 37 at 41, Laws LJ stated: Clearly a public body may choose to deploy powers it enjoys under statute in so draconian a fashion that the hardship suffered by affected individuals in consequence will justify the court in condemning the exercise as irrational or perverse. In Li, French CJ, in particular, found it unnecessary to decide the relationship between irrationality and unreasonableness on the facts of that case. Irrationality may be nothing more than an extreme example of an unreasonable decision. Stretton may well provide an example of the difference. There the Minister's reasons were not bizarre, but for the reasons set out I concluded, nonetheless, that the outcome was unreasonable. The present may also be another such case. Here, too, there is nothing bizarre or irrational in the sense of incomprehensible about the Minister's reasons. She has patently not, for example, decided to cancel Mr Eden's visa because of the colour of his hair. Absence of irrationality does not, in my view, mean that it is not possible to make out a jurisdictional error of unreasonableness. 29 Delay, if it is lengthy, in the circumstances of a particular case, has in the United Kingdom been regarded as a basis upon which a ministerial decision can be regarded as unreasonable. Thus in The Queen v Secretary of State for the Home Department ex parte Handscombe (1987) 86 Cr. App. R. 59 and in Doody v Secretary of State for the Home Department [1994] 1 AC 531 in Lord Mustill's view, a lengthy delay before the Home Secretary's review of a life prisoner's sentence was held to be unreasonable and "excessive beyond belief". Here, for the entirety of the period during Mr Eden's suspension of sentence, he received not a hint from any officer of the Commonwealth that the Minister was even likely to consider his case as one for visa cancellation and deportation. The period is even longer if one has regard to the time which elapsed after the offending conduct. Even after the District Court outcome was finally, for reasons that were not stated, drawn to the department's attention by the Australian Federal Police, no particular urgency attended the sequel to the provision of that information. Over all of that time, a family relationship with a young child was developing. Lethargy on the part of the Minister and her officers and other officers of the Commonwealth, who, inferentially, were charged with drawing court outcomes to the department's attention, allowed that to occur. That, in itself, may well be a factor which warrants a conclusion that this particular outcome was oppressive and unreasonable. 30 As the learned authors of De Smith's Judicial Review note at paragraph 11-74, in The Queen, on the application of the Association of British Civilian Internees (Far East Region) v Secretary of State for Defence [2003] QB 1397 at 33-35 Dyson LJ (as his Lordship then was) in relation to the question of whether proportionality should now become a separate ground of review or whether it should supplant reasonableness as a ground of review observed "the result that follows will often be the same whether the test that is applied is proportionality or Wednesbury unreasonableness". 31 His Lordship felt, as is described in De Smith's Judicial Review, that "he was unable, without the sanction of the House of Lords, yet "to perform its [unreasonableness] burial rights"". 32 It is not for me, sitting in the original jurisdiction, to perform any burial right in relation to the ground of unreasonableness in Australian administrative law. If, indeed, Li is even a funeral notice in that regard, that is a matter for the exercise by the High Court of its ultimate appellate jurisdiction. What is plain enough, even on the basis of the joint judgment in Li, is that the boundaries of unreasonableness were not defined by Lord Greene in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury). 33 Also in Li, Gageler J observed at paragraph 113: [T]he stringency of the test remains. Judicial determination of Wednesbury unreasonableness in Australia has in practice been rare. Nothing in these reasons should be taken as encouragement to greater frequency. This is a rare case. There is, with respect, no doubting the rarity of judicial determination of Wednesbury unreasonableness in Australia. In part that may be because of an apprehension that the metes and bounds of what constituted unreasonableness were only as stated by Lord Greene. The joint judgment in Li makes it plain that that is not so. Further, and again with respect, the rarity of an encounter of a proved case of unreasonableness, even measured by the statement made by Lord Greene in Wednesbury, may be but a reflection of particular high standards, of behaviour by the Queen's Ministers of State and those advising them in the past. Each case truly must be assessed on its particular facts and administrative law merits, not by reference to historical experience. 34 In this particular case, when one has regard to the objective seriousness of the offence, to the delay and to the competing considerations (highlighted above), one of which the Minister regarded as primary, I am driven to the conclusion that the outcome is unreasonable on just the basis described in the joint judgment in Li. I reach that conclusion without exploring proportionality in any way as a replacement for unreasonableness as explained in the joint judgment. Another way, though, of describing the outcome is to adopt the same language that commended itself to French CJ in Li. The Minister has, with respect, taken a sledgehammer to crack a nut. 35 For these reasons, the decision of the Minister is quashed. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.