The applicant have leave to amend the originating application in terms of a draft entitled "Annexure A - Version 2, Amended Originating application for review of a migration decision" and marked "MFI-1", on terms that an electronic version thereof be filed forthwith, but with the need for service thereof being dispensed with in light of earlier communication of the draft to the respondent's solicitors.
The application be dismissed.
The applicant pay the respondent's costs of and incidental to the application in a lump sum 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.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)
LOGAN J:
The applicant is a citizen of Sierra Leone. In October this year, he attained 33 years of age. He came to Australia in 2008 as a 17 year old. In 2010, he was granted permanent residence via the grant to him of the requisite visa. More recently, he was granted, in 2017, a resident return visa under the Migration Act 1958 (Cth) (the Act).
On 7 June 2018, the applicant was convicted by the District Court of Western Australia of the offence of importing a commercial quantity of a border controlled drug. The drug concerned was methylamphetamine. Later that month, on 15 June 2018, the applicant was sentenced in respect of that offence to a term of imprisonment of 10 years and six months. An appeal by him in the Court of Criminal Appeal against that sentence was successful. It was reduced to nine years and nine months imprisonment with a non-parole period of six years and eight months.
That term of imprisonment generated satisfaction on the part of a decision-maker within the respondent Minister's department (or a predecessor thereof) that the applicant failed the character test for which s 501 of the Act provides such that it was mandatory, by virtue of s 501(3A) of the Act, to cancel his visa.
The applicant applied for the revocation of that cancellation on 15 November 2023. A delegate of the Minister acting under s 501CA of the Act decided not to revoke that cancellation.
As was his right, the applicant sought the review on the merits of that delegate's decision not to revoke cancellation by the Administrative Appeals Tribunal (Tribunal). On 7 February 2024, the Tribunal set aside the Minister's delegate's decision. In its place, the Tribunal decided that the cancellation of the applicant's visa should be revoked.
Yet, later this year, on 2 July 2024, the Minister (the Honourable Andrew Giles MP), acting personally, as s 501BA of the Act required, decided at least purportedly to revoke the Tribunal's decision and cancel the applicant's visa.
It is necessary to use the qualification "at least purportedly" because pursuant to an application for the judicial review of the Minister's decision by this Court, the applicant submits that the Minister's decision was attended with jurisdictional error. Were such an error established, and the persuasive onus lies upon the applicant to establish it, then the Minister's decision would be in law no decision at all: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 (LPDT), at [1].
As amended, there are two grounds of review pressed in the applicant's originating application upon the basis of either or each of which it is submitted that the Minister's decision is attended with jurisdictional error. Those grounds are grounds 1 and 5, which provide:
The Minister made legally unreasonable findings in respect to Mr Gamanga's health and medical problems, which represented extensive impediments to his return to Sierre Leone.
Particulars
(a) Mr Gamanga suffers from a serious debilitating inflammatory bowel disease, amongst numerous other conditions, that requires him to regularly access medical treatment at hospitals, take costly medications and injections daily and if his inflammation was not treated he could suffer significant blood loss.
(b) The Minister's finding at [134] stated he "will have access to health and welfare services in Sierra Leone on the same basis as other nationals, although I acknowledge that such services are unlikely to be of a standard and accessibility to Australia."
(c) That finding was unreasonable as it failed to make a rational comparison between what Mr Gamanga will face and what other citizens of that country may face on a day to day basis. This represented a serious practical impediment to how he would subsist if returned.
(d) Further or in the alternative, the Minister was unreasonable in making a comparison with the situation in Australia, when Mr Gamanga had particular health conditions not faced by the average person in Sierre Leone, at his age, who had to access the very limited medical facilities in Sierra Leone.
…
The Minister, having found that cancellation of the applicant's visa was in the national interest, and in considering whether to exercise the discretion to cancel the visa, found at [147] that the applicant "continues to pose a significant risk to the Australian community". The Minister at [60]-[83] considered the risk to the Australian community and concluded at [80] that the applicant "presents a low but not negligible risk of re-offending" and at [81] that "on balance there remains a low, but not negligible, likelihood that [the applicant] will re-offend". In light of the findings at [80]-[81], there was no basis for the Minister to find at [147] that the applicant "continues to pose a significant risk to the Australian community" or to make a finding at [147] on this basis. The Minister's reliance on "a significant risk", and "great harm" when the Minister found there was "a low but not negligible risk of re-offending" and "serious harm", involves jurisdictional error, by the findings being legal unreasonableness, illogical or irrational.
[emphasis in original]
Before turning to the merits of these grounds, it is necessary in light thereof to give a particular context to the Minister's decision. That context is supplied in reasons which the Minister furnished in conjunction with his decision.
Before turning in some detail to those reasons, it is necessary to recall observations recently made in the High Court in BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29, at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ) which emphasise, if any further emphasis were needed, a need for principled restraint in relation to the scrutiny of administrators' reasons on judicial review, a subject already emphasised in an earlier judgment of the High Court, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, which in turn cited with approval, at 271-2, observations made by the Full Court of this Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280. A principled restraint in relation to the scrutiny of administrators' reasons does not entail their being read narrowly and with an eye for error.
At common law, as with others exercising executive power, the Minister is under no obligation to give reasons: see Public Service Board (NSW) v Osmond (1986) 159 CLR 656. In the interests of better public administration and understanding by those affected of decisions of the executive, the Minister was by statute under an obligation to furnish reasons. Even so, it is necessary, in my view, for the judicial branch, in adopting a principled restraint, not to impose upon members of the executive furnishing reasons such a burden as to make the conduct of public administration impossible or near impossible, in a practical sense. These cases of course entail, if adverse to a visa holder, a dramatic change in life in the event that there is consequential deportation. It is important, in light of that, that the basis for the cancellation be comprehensible and yet at the same time not so exacting in terms of reasoning as to make it impossible to make a decision at all in a practical sense.
I make these observations because this case raises, in my view, in an acute way whether or not the reasons are sufficient in terms of addressing subjects in a rational way which the Minister has chosen to address. It is necessary to say "chosen" because of particular features which attend s 501BA of the Act.
As recently as this morning, a Full Court of this Court offered the following summary of authorities which have considered the meaning of s 501BA of the Act in Palmer v Minister for Immigration, Citizenship, and Multicultural Affairs [2024] FCAFC 154 (Palmer), at [42]-[44]. In the joint judgment of Derrington and Hespe JJ, with whom materially in this regard Feutrill J agreed, it was stated:
42 For the purposes of the following discussion, it is appropriate to keep in mind the following accepted propositions in relation to the uniqueness of the power in s 501BA(2).
43 For the purposes of s 501BA(2)(b), it is well accepted that the concept of the "national interest" is broad and evaluative: Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1, 30 [57]; Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 390 [156] - [157] (Carrascalao): and, whilst the decisional freedom is not unbounded, the question is largely a political one: see Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28, 46 [40]; Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231, 242 [18].
44 The Act does not stipulate any factors to which the Minister must have regard in determining what is in the national interest: Vargas v Minister for Home Affairs (2021) 286 FCR 387, 403 [61] (Vargas); Gubbay v Minister for Home Affairs [2020] FCA 1417 [56]; Candemir v Minister for Home Affairs (2019) 268 FCR 1, 5 - 6 [20] - [21], 7 [24]: and it is therefore a matter for the Minister to determine: Carrascalao at 390 - 391 [158].
Flowing from the text of s 501BA, it may be observed that, by subs (2), a discretionary power is conferred upon the Minister, subject to the Ministers satisfaction as to two preconditions. One of those preconditions is not controversial in the present case, namely, satisfaction as to failure to pass the character test. Unremarkably, in light of the term of imprisonment even after successful appeal, there was satisfaction as to a failure to pass the character test for which s 501 of the Act provides.
The Minister also, for reasons he gave, was satisfied in respect of the other national interest criterion. Satisfaction in respect of that criterion offers, in my view, an example par excellence of what is described in Gummow J's judgment in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, at 653-4 (when referencing Buck v Bavone (1976) 135 CLR 110, at 118-9 (Gibbs J)) as a matter of opinion or taste. Such satisfaction-based criteria are not, as Sir Owen Dixon long ago observed in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353, unexaminable on judicial review. One basis upon which such satisfaction can be reviewed is that it was not reasonably open to be so satisfied. The grounds of review do not in terms challenge satisfaction as to national interest as opposed to the consequential exercise of the discretionary power. That too is examinable on judicial review in respect of unreasonableness, but unreasonableness is emphatically not to be equated in any way, shape or form with a review on the merits. Such unreasonableness may be found in the process of reasoning which leads to an outcome or in the outcome itself: see Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, and, in particular, the reasons for judgment of Allsop CJ.
Here too, though, it is necessary for a court to exercise restraint. It is necessary not to approach cases where unreasonableness has been pleaded as offering a back door to a form of merits review. In this regard, also, it is important to take heed of what was said in the plurality judgment in LPDT, at [29]:
A reviewing court does not engage in a review of the merits of the decision, reconstruct a decision-making process, rework the apparent basis upon which a decision has been made, or rewrite the reasons for decision.
Earlier in that same paragraph, by way of footnote citation, the plurality drew attention to the seminal exposition in relation to the limits of judicial review offered by Sir Gerard Brennan in Attorney-General (NSW) v Quin (1990) 170 CLR 1 (Quin), at 35-36. That exposition is peculiarly relevant to this type of case in the sense that at a human level the outcome for the applicant, by ministerial decision and if his application is dismissed, is (unless he has granted some other class of visa) a return to Sierra Leone from Australia, a country in which he has spent approaching half of his life. But as is counselled in Quin, if an outcome on judicial review leads on administratively, reconsideration to a more favourable decision, that is one thing, but it is not for the judicial branch, to engage in an impermissible form of merits review, no matter how dramatic may be a consequence of a visa cancellation.
Turning to the Minister's reasons, I have already referred, as did the Minister, to the conviction in the District Court of Western Australia in June 2018. The Minister recites in his reasons and in considerable detail a lengthy offending history by the applicant dealt with at local court level. Those offences, subject to one which I will shortly mention, were in respect of unlicensed driving, failure to state a name and address or giving an incorrect one and resulted in relatively benign penal consequences and certainly not consequences which in themselves could ever engender, on the basis of a term of imprisonment, satisfaction as to a failure to pass the character test. That is not to say, collectively, that such a view might not alternatively be formed; only that they did not sound in particular terms of imprisonment. The exception though, and one which featured prominently in the Minister's reasons is to be found in a conviction in the local court on 26 July 2010 of the applicant of assault with an act of indecency, for which he was fined $1,000 and placed on a good behaviour bond.
Turning then to the grounds of review, the first ground arises against the background of particular medical conditions from which the Minister accepted the applicant suffered. The relevant part of the Minister's reasons is at [130]-[139]:
Impediments if removed to Sierra Leone
I have considered the extent of any impediments that Mr GAMANGA if removed from Australia to Sierra Leone will face in establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of Sierra Leone, taking into account the following factors.
Age and health
Mr GAMANGA is aged 32. I note that Mr GAMANGA has ulcerative colitis - autoimmune and has received treatment at Fiona Stanley Hospital approximately 30 times, including undergoing surgeries for his condition Attachments D and E. I further note that Mr GAMANGA has a number of other conditions including Tuberculosis infection latent, Hypokalaemia, Ulcerative proctosigmoiditis, testicular torsion, iron deficiency anaemia, bilateral orchidopexy and haemorrhoids Attachment E. I further note that the report from Ann Marie De Santa Brigida, psychologist, dated 20 January 2024 diagnoses Mr GAMANGA with Post-traumatic Stress Disorder Attachment O.
Language and/or cultural barriers
I find that any linguistic and cultural difficulties Mr GAMANGA may experience on return to Sierra Leone will be limited, given that the main language in his home country is the language which he would have spoken prior to moving to Australia. I note that Mr GAMANGA spent 18 months in Guinea but find that Mr GAMANGA spent most of his formative years in Sierra Leone Attachment J.
Social, medical and/or economic support available in Sierre Leone
Mr GAMANGA stated that the medical facilities in Sierra Leone are very limited. Mr GAMANGA further stated that he does not have the financial ability to pay for medication and the medical facilities and medication are not paid for by the government in Sierra Leone. Mr GAMANGA stated that the current situation in Sierra Leone is unstable and he believes that because of his, the medical facilities required would not be available. He further stated that since his father's passing, he has limited contacts in Sierra Leone Attachment J.
I find that Mr GAMANGA will have access to health and welfare services in Sierra Leone on the same basis as other nationals, although I acknowledge that such services are unlikely to be of a standard and accessibility to Australia. I accept that Mr GAMANGA has significant and ongoing health needs and find that this weighs against cancellation of the visa.
Mr GAMANGA stated that his rehabilitation and reintegration into society in the absence of his family will be "difficult and suicidal" and he it will be difficult for him as a deportee from Australia to find a job if others cannot find jobs Attachments HH.
Dr Wojnarowska in her report opined that Mr GAMANGA was likely to experience distress if he was returned to Sierra Leone given that he will be separated from his immediate family and son Attachment D.
As referred to above, Mr GAMANGA further stated that he would face his death if he went to Sierra Leone and 'there is a price on' him as 'the guys that set him up with the suitcase' are in Sierra Leone so when he arrives, they will know and they know that he told the police about the person he was meant to give the suitcase to. He stated that when he got 'lock up' they sent someone to visit him and he told the police about what happened but the police did not do anything. He further stated that he will be homeless in his country Attachment JJ.
I find that Mr GAMANGA will experience practical, financial and emotional hardship if removed to Sierra Leone, because of the lack of family and social support and lack of medical and economic support, and because he will likely be separated from his son.
While Mr GAMANGA is not the subject of a protection finding, I note that he has made claims that have the potential to engage Australia's non-refoulement obligations. These claims have not yet been assessed. I recognise that Mr GAMANGA's fear in relation to his possible future treatment in Sierra Leone in itself constitutes an impediment to his return and have given this weight against cancellation. However, I note that no further evidence has been provided in relation to this claim and particularly how his former associates would be aware of his return or whether he would be able to access state protection.
The Minister chose to advert to the subject of impediments if removed to Sierra Leone. I say chose because that subject was not, in any mandatory way, a relevant consideration, although it was permissible for the Minister to advert to it. That consideration, as it happens, has an analogue in the directions issued by the Minister under s 499 of the Act for the quite different purpose of administrative decision-making under s 501 and s 501CA of the Act. Reading the Minister's reasons as a whole, and the subjects to which the Minister adverts, it is by no means impossible to see that the Minister may well have derived inspiration for subjects to which he permissibly adverted from directions given from time to time under s 499.
The point advanced for the applicant was not that the Minister was bound to advert to such a subject. Such a submission would necessarily fail, given the absence of any express statutory obligation and further the absence, even by implication, of such an obligation. Rather, the submission was that, having chosen to advert to the subject, the Minister was obliged to do so with regard to what was said of an analogous subject in a number of judgments given in the original jurisdiction of this Court. These are exemplified by, and also as to earlier authorities collected in, the judgment of Madgwick J in Misiura v Minister for Immigration &Multicultural Affairs [2001] FCA 133, at [13]-[14], and then, in turn, by Mortimer J in Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 985 (Nguyen).
Nguyen entailed an exposition by Mortimer J of the meaning of an analogue criterion in the then applicable Ministerial direction, in respect of the decision in question in that case. I might summarise what her Honour said by recording that an individually specific consideration of impediment was required.
The Minister though, in this case, in [130], has defined for himself the criterion to which he has chosen to advert. It does contain a phrase which is similar to that considered by Mortimer J in Nguyen, the extent of any impediments that Mr Gamanga, if removed from Australia, will face. Even so, the question in relation to ground 1, in essence, becomes whether or not what is found both in the last sentence of [134], read in conjunction, in particular, with the reference to his health conditions in [142] of the Minister's reasons (which I set out below in addressing ground 5), answers the error pressed in relation to ground 1.
The long and the short of it is that, in my view, the reasons do not exhibit the error raised in ground 1, if one adopts what I have earlier described by reference to a High Court authority as a principled restraint in the scrutiny of administrator's reasons.
Looking at these reasons, I find it impossible to read the last sentence of [134], and the reference to health conditions in [142], in conjunction with the most detailed account of those conditions in [131], as exhibiting anything other than a ministerial confrontation with an individually specific consequence for the applicant, in the event that his visa is cancelled. To require more from the Minister than what one finds in the reasons would, in my view, be to impose an overly exacting standard by the judicial branch on the executive branch.
I turn then to ground 5. Consideration of ground 5 requires that a number of paragraphs in the Minister's reasons be set out. There is a risk in so doing of giving the impression that the result in respect of this ground is based solely upon consideration of these paragraphs, as opposed to a reading of the reasons as a whole. Subject to that caveat, one finds in the Minister's reasons, the following paragraphs:
On 26 July 2010, Mr GAMANGA was found guilty in the Local Court of New South Wales of the following offences Attachment A:
i. Assault with act of indecency- T2, fine $1,000, bond s9 18 months, costs court $79;
ii. Negligent driving (not occasioning death/gbh), fine $200; and
iii. Unlicensed driver/rider (not licensed for 5 yrs) -1st offence, fine $200.
…
In relation to the assault with act of indecency - T2 offence, in a statement provided to the department on 2 November 2023, Mr GAMANGA stated that on 28 November 2009, he was charged with Assault with act of indecency and Common Assault. It appears that the common assault charge referred to by Mr GAMANGA was subsequently withdrawn or dismissed. Mr GAMANGA stated that on that date, he was 'walking in Condell Park and met a girl I had met previously on the street, her name was [Victim's name]. [Victim's name] and I had met each other before 28 November 2009 and I had believed we were in a relationship. I was charged with assault, whereby I touched her on the right breast with my right arm. I pleaded guilty to the charges'. He further stated that he had not been charged with any further assault matters, had not contacted [Victim's name] since and believed that [Victim's name] was 18 years of age Attachment I.
In subsequent documentation provided to the department on 3 November 2023, the New South Wales Police Facts Sheet states that at approximately 2:30pm, the victim, [Victim's name], was walking along a footpath near Condell Park. The document states that [Victim's name] was 'listening to her iPod and could not hear external noise very well'. She subsequently crossed the road, walking past Mr GAMANGA. The document states that [Victim's name] heard a voice behind her, turned around and removed her headphones, and heard Mr GAMANGA ask if he could come with her. The document states that [Victim's name] 'did not know who the accused was or why would have any reason to make this request. The victim noticed that the accused had a thick African accent but spoke good English' Attachment K.
[Victim's name] then said to Mr GAMANGA 'No, sorry I'm going home. The victim became concerned that the accused was following her but did not attempt to run or give the accused reason to harm her. The victim began to converse with the accused in order to buy herself some time and get closer to home. The accused said 'I'm really bored'. The victim said 'Me too, that's why I'm going for a walk. What's your name? The accused said 'Youssef, what's yours? The victim said [victim's name]' Attachment K.
The document states that Mr GAMANGA was walking on the left hand side of [Victim's name], when he put his arm around her waist. [Victim's name] was wearing a loose singlet top with large arm openings. The document states that [Victim's name] l 'could feel the accused touching the skin of her right side. The accused then moved to a position where he was walking very close behind the victim and now had both his hands on the victim's skin on the side of her body. The accused began touching the skin on the victim's abdomen and then with his right hand touched the victim's right breast over the bra, thereby indecently assaulting her' Attachment K.
Mr GAMANGA then asked [Victim's name] to go to Punchbowl with him and she refused. [Victim's name] broke free and walked to a house nearby, that of, [bystander]. The document states that [bystander] 'recognised the accused from an earlier meeting where they exchanged phone numbers. The accused stayed outside for a number of minutes before leaving the area'. Police later attended [Victim's name] home and obtained details regarding the assault Attachment K.
On 17 January 2010, Mr GAMANGA attended Bankstown Police Station and participated in an interview where he admitted that he met, walked and spoke with [Victim's name], however, denied indecently assaulting her Attachment K.
I note that Mr GAMANGA's account of the incident is inconsistent with the account provided in the New South Wales police facts sheet. I accept, as the AAT did (Attachment KK), that the New South Wales police facts sheet as the more likely version of the events.
In correspondence received by the department on 9 November 2023, Mr GAMANGA's legal representative, Mr Bhavesh Lakhani, submitted that as a result of the offence committed on 28 November 2009, Mr GAMANGA was placed on the sex offenders register for a 'period of eight years and as part of this time was during his time in Acacia Prison he may need to be added to the list once he is released' Attachment L.
In considering the nature and seriousness of Mr GAMANGA's criminal offending, I take the view that offences such as drug importation, particularly of a large quantity of methamphetamine, and assault with indecency are very serious.
I find that the sentence Mr GAMANGA received for the drug importation is a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and the imposition of such penalties indicates that the court viewed the offending as very serious.
I also note that Mr GAMANGA has committed a sexual crime against a woman who appeared to have been underage and he was required to be on the sex offenders register for a period of eight years which I consider to be very serious. I also consider that while the crime was not directly violent, on the basis of New South Wales police facts sheet, it appears that the victim resisted Mr GAMANGA's advances, was subjected to an indecent assault and had to 'break free' to escape. I consider this to be a form of sexual violence.
Taking into account both the two convictions I have mentioned, as well as a litany of other less serious offending conduct, the Minister's conclusion at [59] of his reasons was that, overall, Mr Gamanga's conduct is "very serious". The conclusion reached by the Minister, particularly having regard not just to the two convictions I have highlighted, but also to the overall range of offending conduct, undoubtedly reasonably admitted of that conclusion.
The Minister also chose to look to risk to the community. In so doing, the Minister's conclusions were expressed at [81] to [83] in the following way:
The Australian government is committed to protecting the Australian community from harm resulting from criminal activity or other serious conduct by non-citizens.
I have found that Mr GAMANGA's conduct is very serious and that such conduct has the potential to cause physical and psychological injury and financial harm to members of the Australian community. A number of factors, as outlined above, may have contributed to Mr GAMANGA's offending behaviour. I note that these included financial stress and a traumatic childhood. I remain concerned that these factors present an ongoing risk. I have found that on balance there remains a low, but not negligible, likelihood that Mr GAMANGA will reoffend.
Considering the nature and seriousness of Mr GAMANGA's conduct, the potential harm to the Australian community should the non-citizen commit further offences or engage in other serious conduct, and taking into account the likelihood of Mr GAMANGA reoffending, I consider that the need to protect the Australian community from criminal or other serious conduct weighs heavily in support of cancellation in this case in the national interest.
[emphasis added]
The Minister's overall conclusions are to be found in [140] to [148] of his reasons:
I am satisfied that Mr GAMANGA does not pass the character test because of the operation of, in this case, s501(6)(a) with reference to s501(7)(c) of the Act. Further, I am satisfied that it is in the national interest to cancel Mr GAMANGA's visa.
I have found that the best interests of Mr GAMANGA's minor child weighs significantly against cancellation of Mr GAMANGA's visa.
In addition, I have found that a number of other factors also weigh against a decision to cancel the visa. These include Mr GAMANGA's ties to Australia and the impediments if removed to Sierra Leone, particularly in relation to his health conditions. I further take into account his fear that he will suffer harm as a person who assisted police with drug investigations.
I have given very significant weight to matters weighing in favour of cancellation. In doing so, I considered the serious nature of the crimes committed and the fact that Mr GAMANGA has shown limited remorse and insight into his offending. I note that Mr GAMANGA will have the support of his family and the motivation of his son as protective factors, however I note that these factors existed prior to Mr GAMANGA's offending.
Mr GAMANGA has committed serious crimes, including that of import/export commercial quantity of border controlled drugs or plants and assault with act of indecency-T2 which involved sexual violence against a woman. Mr GAMANGA has a history of offending causing great harm and great cost to the Australian community. Non-citizens such as Mr GAMANGA who have a criminal history of such offences should not generally expect to be permitted to remain in Australia.
I find that the Australian community could be exposed to significant harm should Mr GAMANGA reoffend in a similar fashion. I could not rule out the possibility of further criminal conduct by Mr GAMANGA. The Australian community should not tolerate any risk of further harm.
Noting that Mr GAMANGA has lived in Australia for approximately half of his life, I have taken into account that the Australian community may afford a higher level of tolerance of criminal or other serious conduct by Mr GAMANGA than it would otherwise. However I am also cognisant that where great harm could be inflicted on the Australian community, even strong countervailing considerations are generally insufficient to warrant not cancelling the visa.
In addition to the need to protect the Australian community from risks of harm, I have also considered what the community would expect in relation to non-citizens. I am of the view that the Australian community generally would expect non-citizens who have a very serious criminal history involving violence and sexual crimes not to continue to hold a visa, especially where the non-citizen continues to pose a significant risk to the Australian community.
I find that the considerations against cancellation are outweighed by the national interest considerations in this case.
The submission for the applicant was that there was more than just an inherent tension, but rather, irrationality or illogicality as between the conclusion of [82], as to there remaining a low, but not negligible, likelihood that Mr Gamanga will re-offend, and the descriptors found, in particular, in [147], as to the significant risk to the Australian community, and in the language of [144].
As a matter of initial impression, it is by no means impossible to see how such a view might be engendered, even from reading the Minister's reasons as a whole. On reflection, however, the better view is that the Minister was addressing only risk of re-offending in [82], and the rather different subject in his conclusions as to significant risk to the Australian community. The latter is to be read, in my view, as a risk in the event that offending conduct does occur, which is, as assessed by the Minister, significant because it would result in great harm. So it is not a case where, at an earlier stage in the reasons, there has been one view taken, and an inconsistent, illogical or irrational view taken at another part of the reasons.
Further, one has to read, in my view, in [147], the reference to "Non-citizens who have a very serious criminal history of involving violence and sexual crimes" as a reference to a generic class; rather than misunderstanding by the Minister of the particular offence of indecent assault of which the applicant was convicted. Instead, all that the Minister has done is to set out a class to form the view, which was reasonably open, that the particular offence of indecent assault, in the way in which the Minister found it to have been committed, fell within that class.
The overall impression created by these reasons is of a Minister who was very well seized, indeed, of conditions from which the applicant suffered, as well as impacts on family, and in particular a child, but also well seized with what, in his view, amounted to the national interest and the expectations of the Australian community.
In the end, the Minister made an evaluative judgement. It was not, in my view, attended with either of the asserted jurisdictional errors. It was just one of those decisions which Parliament has consigned of a Minister of State to make personally. In the absence of jurisdictional error, the Minister is responsible to the Parliament, not to the courts, and perhaps to a court public of opinion. In the end, a political value judgement as to where the national interest lies has been lawfully made by the Minister.
For these reasons, the application will be dismissed.
That result is in no way reflective of the skill with which the applicant's case was put on his behalf by counsel. Outcomes on judicial review adverse to an applicant give - as is the very nature of the exercise of judicial power - a certainty which is not necessarily to be assimilated with an absence of reasonable grounds for the making of an application.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.
Parties
Applicant/Plaintiff:
Gamanga
Respondent/Defendant:
Minister for Immigration and Multicultural Affairs