Elara v Assistant Minister for Immigration and Border Protection

assistant minister's decision 8 Section 501CA(4) of the Act provides: The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. 9 The Assistant Minister was not satisfied the applicant passed the character test as defined by s 501 of the Act and so found that s 501CA(4)(b)(i) of the Act was not met. 10 In determining whether he was satisfied there was another reason why the original decision should be revoked, in accordance with s 501CA(4)(b)(ii), the Assistant Minister considered the applicant's representations and supporting documents. 11 The Assistant Minister noted the applicant submitted the following other reasons for revocation: the best interests of his three minor children would not be served by his return to Papua New Guinea; his children and partner would not relocate to Papua New Guinea; the best interests of his mother would not be served by his return as he provides financial support to her; he would be devastated to leave his large family in Australia, who represent 90% of his total family; he would be in danger due to the fighting between the tribes and clans; he would be regarded as wealthy and would be the target of those who would want to kill him; and he has contributed to the Australian community through periodic employment. 12 The Assistant Minister accepted that the applicant has three minor children with two different partners, all of whom live in Australia, and that it was in the best interests of the children, who are Australian citizens, for the visa cancellation decision to be revoked to enable them to be supported or parented by him in the future. 13 The Assistant Minister gave less weight to the consideration of the applicant's residence in Australia for approximately five years, as the applicant started to offend soon after arriving in Australia as an adult of 18 years. 14 The Assistant Minister accepted that the applicant's employment between 2014 to 2016 and his sporting contributions constituted some level of positive contribution to the community, but found that Australia has a low tolerance of criminal conduct for people, such as the applicant, who have participated and contributed to the community only for a short period. 15 With respect to the applicant's family and his social ties to Australia, the applicant submitted that he has a large extended family who reside in Australia. These include his siblings, half-siblings, father, stepmother, uncles and aunts, nieces and nephews, cousins and grandparents. The Assistant Minister concluded that a non-revocation decision would cause his extended family emotional distress. 16 The Assistant Minister further found that a decision not to revoke the original decision would result in significant emotional, practical and financial hardship to his first partner, the mother of two of his children, who has advised that she and their children would not relocate to Papua New Guinea. The Assistant Minister also accepted that the mother of his other child would experience emotional distress if he returned to Papua New Guinea. 17 The Assistant Minister found that a decision not to revoke the original decision would result in financial hardship to his mother, who lives in Papua New Guinea and depends on his financial support to be able to afford medicine for her chronic asthma. 18 As to the impediments that the applicant would face if removed from Australia to Papua New Guinea, the Assistant Minister found the applicant would experience significant emotional hardship in leaving his children and family and would likely experience substantial hardship in re-establishing himself in Papua New Guinea due to his lack of family support, and in seeing his mother lose his financial support from Australia. 19 The Assistant Minister further noted the applicant's fears of returning to Papua New Guinea and being targeted due to his wealth, and considered those fears may add to his difficulties in readjusting and establishing himself in Papua New Guinea. 20 In considering the nature and seriousness of the applicant's criminal offending, the Assistant Minister stated that violent offences are very serious and the applicant has a history of offending from 2012 to 2016, including domestic related offending. The Assistant Minister noted the applicant has been sentenced to imprisonment on multiple occasions and found his offending, overall, to be serious. 21 In considering whether the applicant posed a risk to the Australian community through re-offending, the Assistant Minister had regard to mitigating and causal factors in his offending. The Assistant Minister also acknowledged the applicant's rehabilitation efforts, including his remorse for his offending, obtaining counselling and treatment for his alcohol dependency, completion of relevant programs in prison, the support he has from his family and friends, and the availability of employment upon return to the community. 22 Notwithstanding these factors, the Assistant Minister considered that the applicant's ability to resist alcohol has not been tested in the community and that the applicant lacked insight and remorse for his 2015 domestic violence offending. The Assistant Minister found that there was a likelihood, albeit low, that the applicant would re-offend. 23 The Assistant Minister concluded that the applicant represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children and other minor family members, as a primary consideration, and any other considerations as described above. 24 Accordingly, the Assistant Minister was not satisfied that there was another reason why the original decision should be revoked and the applicant's visa remained cancelled.

Judicial review in this court 25 The applicant's judicial review application was filed on 2 June 2017 and was supported by an affidavit dated 23 May 2017. 26 On 27 November 2017, the applicant's lawyer filed an amended application which contains the following grounds of review: 1. The respondent's decision was unreasonable; 2. The respondent took into account irrelevant considerations; 3. The respondent failed to take relevant considerations into account; 4. The respondent addressed the wrong question or questions in making the decision. 5. The respondent did not properly interpret and apply s 501CA and s 501CA(4) of the Migration Act 1958; 6. The respondent failed to properly exercise his discretion under s 501CA and s 501CA(4) of the Migration Act 1958 7. The respondent's decision involved an error of law; 8. The respondent's decision was otherwise contrary to law. 9. The Applicant seeks to have this matter adjourned, until the matter in Falzon v Minister for Immigration and Border Protection (Falzon) is decided by the High Court. Falzon was heard by the High Court on 14 November 2017. The ground relied upon by the Applicant is as follows: The decision of the respondent was invalid because s 501(3A) of the Migration Act 1958 (Cth), on which it depended, was itself invalid as purporting to confer judicial power on the respondent Minister, contrary to Ch III of the Constitution. 27 By written and oral submissions, counsel for the applicant makes the following submissions in support of the amended application. 28 Primarily he says the Assistant Minister's decision results in a penalty to the applicant that is "totally disproportionate" to the course of conduct that he undertook and for that reason is legally unreasonable. Reliance is placed on Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. The applicant submits his conduct was at the lower end of the "seriousness" scale and there seemed to be prima facie grounds for provocation, prevention of repetition of insult, and/or self-defence under the Criminal Code Act 1899 (Qld). 29 In response to the Assistant Minister's concern over the applicant's domestic violence offending, the applicant's lawyer submits the following: The Respondent appears to be most concerned over the Applicant's offending in relation to domestic violence. The Respondent takes into account the Applicant going back to say good night to his daughter, then the Police were called and the Applicant was charged but his partner and sister went to the Police Station to have the charges dropped but the Police were unable to drop the charges. The Applicant subsequently had his visa cancelled. This was a mandatory cancellation under section 501(3A). The Minister had a discretion to revoke the cancellation under section 501CA(4)(b)(ii) where the Minister may revoke the original decision if: The Minister is satisfied that there is another reason why the original decision should be revoked. It is submitted, that it is completely disproportionate with the offence and/or offences that the Applicant has committed with the resulting penalty that the Applicant is to have his Visa cancelled and be removed from Australia. 30 Counsel for the applicant further contends the Assistant Minister failed to give adequate weight to the fact that he had gone back into the house to kiss his daughter good night and that his partner and sister tried to have the charges dropped but were unable to, and this indicated a misunderstanding and/or rash decision at the time. 31 He also submits the decision to cancel the applicant's visa will make it extremely difficult for his partner(s) to raise his three children, as he will not be present in Australia and will not be able to provide material and moral support to his partner(s). This, counsel says, will perpetuate the cycle of reliability on social welfare and/or his partners becoming involved with people who may support them financially but may ultimately become abusive. 32 Additionally, counsel contends the decision is disproportionate because the end result, namely the cancellation of his visa, will have an extremely deleterious effect on his siblings, his father and stepmother, and his children. 33 The applicant submits the Assistant Minister asked the wrong question and/or did not take a relevant consideration into account in relation to the applicant's family. Counsel argues the Assistant Minister failed to ask what would happen to his children and how they would be disadvantaged/prejudiced if he returned to Papua New Guinea. He says the children will be in the care of their mother, who may be in a single relationship or be forced to find another partner in order to maintain the children and herself. 34 He additionally submits the Assistant Minister took an irrelevant consideration into account when he stated that the applicant's reoffending "may result in psychological or physical harm to members of the Australian community and may pose a financial cost to the community through any required use of law enforcement resources and the criminal justice system". Counsel contends this consideration is irrelevant and the Assistant Minister, by this statement, is "putting a financial cost or detriment ahead of a moral or personal cost to the Applicant's Australian citizen children". 35 As to ground 9 of the review application, the applicant submits the Assistant Minister's decision was invalid because s 501(3A) of the Act is itself invalid as purporting to confer judicial power on the Minister, contrary to Ch III of the Constitution. In this regard, the applicant submits the proceedings in Falzon v Minister for Immigration and Border Protection [2017] HCATrans 230 (No S31/2017), which was heard by the High Court on 14 November 2017, may have a direct bearing on this matter. Consequently, the applicant requests that this matter be adjourned until after Falzon is decided. 36 The Assistant Minister filed written submissions on 1 December 2017. While the Minister initially contended that the applicant's amended application did not comply with programming orders made by the Court on 14 July 2017, at the hearing this objection was abandoned. 37 The applicant's case, the Assistant Minister says, appears to be as follows: (1) The Assistant Minister's decision was legally unreasonable because cancellation of the visa was disproportionate to the applicant's offending (reformulated ground 1). (2) The Assistant Minister's decision was legally unreasonable because the Assistant Minister failed to give adequate weight to the circumstances of the assault committed by the applicant on 3 October 2015 (reformulated ground 2). (3) The Assistant Minister's decision was legally unreasonable because the Assistant Minister failed to take into account the impact of the cancellation of the visa on the applicant's children and their respective mothers (reformulated ground 3). (4) The Assistant Minister failed to take into account a relevant consideration, being the disadvantage the applicant's children will suffer if the applicant returns to Papua New Guinea (reformulated ground 4). (5) The Assistant Minister took into account an irrelevant consideration, being that any re-offending by the applicant may result in physical or mental harm to members of the Australian community (reformulated ground 5). (6) The Assistant Minister took into account an irrelevant consideration, being that any re-offending by the applicant may result in a financial cost to the Australian community through the use of law enforcement resources and the criminal justice system (reformulated ground 6). (7) The Assistant Minister did not address the question of whether the financial cost to the Australian community through the use of law enforcement resources and the criminal justice system caused by any re-offending by the applicant was outweighed by the importance of the applicant remaining with his children (reformulated ground 7). (8) The Assistant Minister did not address the question of whether the financial cost to the Australian community through the use of law enforcement resources and the criminal justice system caused by any re-offending by the applicant was outweighed by the financial savings the Australian community would gain by the applicant remaining with his children (reformulated ground 8). (9) Section 501(3A) of the Act is invalid because it purports to confer judicial power on the Minister contrary to Ch III of the Constitution (Falzon ground 9). 38 The Assistant Minister submits that the reformulated grounds, as described above, fail on the facts and/or as a matter of law for the following reasons. 39 The Assistant Minister submits that reformulated ground 1 challenges the conclusion that the protection of the Australian community outweighed all other considerations, including the best interests of the applicant's minor children. 40 With respect to reformulated grounds 2, the Assistant Minister says he did take into account the circumstances of the assault committed by the applicant on 3 October 2015, although he was not obliged to have regard to the circumstances of the assault; and the weight, if any, to be attached to the circumstances of the assault was a matter for the Assistant Minister. 41 With respect to reformulated ground 3, the Assistant Minister says he did take into account the impact of the visa cancellation decision on the applicant's children and their mothers; although he was not obliged to take this into account; and the weight to be attached to this consideration was a matter for the Assistant Minister. 42 With respect to reformulated ground 4, the Assistant Minister says he did take into account the disadvantage the applicant's children will suffer if the applicant returns to Papua New Guinea; and the weight to be attached to this consideration was a matter for the Assistant Minister. 43 As to reformulated ground 5, the Assistant Minister submits that the making of a factual finding should not be converted into taking an irrelevant consideration into account so as to give rise to a jurisdictional error. See SZNGI v Minister for Immigration and Citizenship [2010] FCA 154 at [22]. In any event, the Assistant Minister says, the fact that any re-offending by the applicant may result in physical or mental harm to members of the Australian community was not an irrelevant consideration; it was a highly relevant consideration. 44 The Assistant Minister submits the following in relation to reformulated ground 6: As to the facts: (1) The Minister considered that the Applicant's past (not possible future) offending had a financial cost to the Australian community through the use of law enforcement resources and the criminal justice system. (2) The Minister noted that any future re-offending by the Applicant may impose a financial cost to the Australian community through the use of law enforcement resources and the criminal justice system. (3) The Minister did not place any financial cost to the Australian community if the Applicant re-offended ahead of the interests of the Applicant's Australian citizen children. The Applicant's focus on the reference to the financial cost to the Australian community through the use of law enforcement resources and the criminal justice system distorts the Minister's reasons. As to the law: (4) The making of a factual finding should not be converted into taking an irrelevant consideration into account so as to give rise to a jurisdictional error. See SZNGI v Minister for Immigration and Citizenship [2010] FCA 154; (2010) 114 ALD 64 at [22] per Rares J. (5) In any event, the financial cost to the Australian community through the use of law enforcement resources and the criminal justice system was not an irrelevant consideration because it was not a 'forbidden' consideration. 45 As to reformulated ground 7, the Assistant Minister concluded that the protection of the Australian community outweighed the primary consideration of the importance of the applicant remaining with his children. Further, the Assistant Minister says he was not obliged to address the question of whether the financial cost to the Australian community through the use of law enforcement resources and the criminal justice system caused by any re-offending by the applicant was outweighed by the importance of the applicant remaining with his children. 46 As to reformulated ground 8, the Assistant Minister says he was not obliged to address the question of whether the financial cost to the Australian community through the use of law enforcement resources and the criminal justice system caused by any re-offending by the applicant was outweighed by the financial savings the Australian community would gain by the applicant remaining with his children. 47 Finally, in relation to the Falzon ground, the Assistant Minister submits that it would be appropriate for judgment in this matter to be reserved pending the High Court's determination of Falzon. 48 The Assistant Minister concluded that the applicant's amended application should be dismissed with costs.

Consideration 49 This case, like a number of others that have come before the Court in recent times involving the mandatory cancellation of a visa and the judicial review of the Minister's decision not to revoke the cancellation decision, raises the question of jurisdictional error by reason of the legal unreasonableness of the decision. Related questions of failure to take account of relevant considerations or giving undue weight to other considerations are also raised. 50 The raising of this issue is not altogether surprising as the factual circumstances in cases like this one often involve persons who have been resident in Australia for many years, who have children and other family in Australia, and who have relatively little in common with the country of which they remain a citizen and to which they will be sent if their visa is or remains cancelled. 51 The question of when legal unreasonableness of a decision will be found has been the subject of considerable judicial analysis in recent years, especially following the decision of the High Court in Li. 52 In the recent decision of Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200, the Full Court (Flick, Perry and Charlesworth JJ) at [35], by reference to Li; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28; and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11, summarised the law relevant to the exercise by the Minister under s 501 to refuse or cancel a visa on character grounds. This analysis is generally relevant to the exercise of the Assistant Minister's decision in this case under s 501CA(4). The Court stated: (1) the power conferred under s 501(2) of the Act is implicitly confined by the subject matter, scope and purpose of the legislation: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 (Dixon J); (2) as Allsop CJ explained in Stretton [Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1] (at [11]), the task of reviewing a decision for legal unreasonableness is not definitional, but one of characterisation: … the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. … (3) the Court is to look to the reasons given for the decision to understand why the power was exercised as it was: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; (4) as the Full Court explained in Singh, the process of review of legal unreasonableness "will inevitably be fact dependent". The Court continued (at [48]): … That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as 'intelligible justification' must involve scrutiny of the factual circumstances in which the power comes to be exercised. (5) in a different review context, Deane J spoke of the requirement that a statutory tribunal act rationally and reasonably: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 - 368. His Honour's explanation of the content of that obligation applies equally to the Minister in the exercise of the power conferred by s 501(2) of the Act (at 367): When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. (6) nevertheless, as Wigney J said (with respect correctly) in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 (at [55]): … allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal's decision was affected by jurisdictional error: SZRKT at [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal's ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at [66]; SZWCO at [64]-[67]. 53 In Muggeridge, the Court identified as a critical issue on the appeal before it whether the Minister's inference, that there was a possibility that Mr Muggeridge might reoffend in a similar fashion, was one that was logically open to him to draw and, if not, whether any lapse in logic in respect of that question vitiated the decision to cancel Mr Muggeridge's visa. 54 The Court, at [46], accepting that s 501(2) is directed at least in part to matters affecting the safety of the Australian community, considered that to say that the statute implicitly recognises that all persons who have previously committed an offence are more likely to offend in the future, is to state the implication too highly. The Court accepted the fact of prior offending will, in most if not all cases, invite consideration of the question whether the person in fact presents some risk to the Australian community. The starting point in that consideration will invariably be the fact of the prior offending. The Court, however, added: 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 reoffend. 55 The Court, at [47]-[48], then went on to observe: 47 If, in the exercise of the discretion, the Minister in fact addresses the question of harm by a process that includes a form of abstract propensity reasoning, the resulting decision could not, on that basis alone, be characterised as legally unreasonable. It is not inconsistent with the purpose of the power conferred by s 501(2) of the Act to reason in that fashion. The Minister's submissions are to be accepted to that extent. 48 However, it is not to be presumed that the Minister has reasoned in a particular fashion in a particular case, merely because the manner of reasoning would be permissible. 56 The Court then went on to consider the facts in the case before it, noting that the Minister had made express findings to the effect that Mr Muggeridge had not committed any offence since 1991, that he was fully engaged in his community, charitable and church activities, that he had loving family relationships, that he had explained his past offending by reference to his age and circumstances, that he had expressed remorse and that there was no evidence that he had had any affiliation with any outlaw motorcycle clubs since his return to Australia in 1997. The Court noted that on the basis of those facts, the Minister critically had made a positive finding that Mr Muggeridge had demonstrated rehabilitation. The Court thus concluded, in the light of those concrete factual findings and the conclusions drawn from them, that it could not be concluded that the Minister implicitly found Mr Muggeridge to be a person having the propensities of a past offender to re-offend. 57 At [50], the Court added that it was not apparent that the Minister relied on the past offence findings to justify his conclusion that the possibility of Mr Muggeridge re-offending in the same fashion could not be ruled out. The Court there added that: "The past offence findings do not logically inform the degree of likelihood of Mr Muggeridge re-offending in a similar fashion". 58 At [51], the Court effectively concluded: Viewed in the abstract, there might be a logical connection between the past offence findings and the likelihood of similar re-offending had the Minister relied on evidence capable of supporting a conclusion that it was possible that Mr Muggeridge would resume contact with an outlaw motorcycle club. However, of themselves, the past offence findings are not capable of supporting that conclusion, especially in light of the Minister's express favourable findings toward Mr Muggeridge. 59 At [55], the Court said that the reasons provided by the Minister did not provide "any logical basis for concluding that there was a possibility that Mr Muggeridge would resume contact with such a [motorcycle] club". 60 The Court said, at [56], there was no evident rational connection between the advancement of a legitimate object of the statute and the particular materials upon which the Minister was said to have relied. The Court added: A rational connection in a case such as the present should not depend upon unnatural implications drawn from the reasons that cannot be reconciled with the express findings concerning Mr Muggeridge's demonstrated rehabilitation, his serious physical debilitation and the absence of evidence that he had had any connections with like motorcycle clubs for more than two decades. 61 In short, as the Court concluded at [58], the decision of the Minister was attended by illogicality going to a critical matter upon which the exercise of the Minister's discretion turned, namely the possibility of "great harm" to the Australian community presented by Mr Muggeridge's continued presence in Australia. 62 Taking these principles of legal unreasonableness into account and accepting that the resolution of the question in any case requires a fact driven analysis, it cannot be said that the decision made by the Assistant Minister under s 501CA(4) in this case not to revoke the mandatory decision to cancel the applicant's visa is illogical or lacks an evident justification or is otherwise disproportionate to the proper objects of the power exercised by the Assistant Minister. 63 The applicant was a person who presented, on the facts before the Assistant Minister, as a person who had come to Australia from Papua New Guinea as a young adult and who had been engaged in relevant offending for a continuing period. His offending was also recent, including by way of domestic violence. 64 The weight to be attached to the offending and the other reasons mitigating against the cancellation of the visa were for the Assistant Minister to assess and evaluate. 65 The Minister reasonably and properly noted all of the factors that would suggest revocation of the cancellation decision might be appropriate. These included the applicant's children being in Australia, his ability to work in Australia, and his support for his mother in Papua New Guinea, as well as the possibility that life might be difficult for him upon return to Papua New Guinea. 66 But, in reality, the submission made on behalf of the applicant, that the decision not to revoke the cancellation decision was disproportionate, was simply an appeal to the "fairness" of the decision made by the Assistant Minister - that is to say, the merits of that decision, which does not involve a jurisdictional error issue. 67 There is nothing in the decision made, in the reasoning process, or in the materials relied upon, that provide some sort of disconnect between the refusal to revoke the cancellation of the visa and the materials relied upon in coming to that decision. 68 For these reasons, the application for judicial review, subject to the Falzon issue, should be dismissed. 69 However, because of the further ground, which depends on the outcome of the proceeding in Falzon in the High Court, it is appropriate that this matter now be stood over until after the Falzon decision is determined before any final orders are made. 70 The order now made is that:

1. This matter be stood over until two weeks after the determination of Falzon v Minister for Immigration and Border Protection [2017] HCATrans 230 (No S31/2017). I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.