Discussion
78 In the result, I consider that the submissions made on behalf of the Minister should be accepted.
79 When one has close regard to the full terms of the Minister's statement of reasons for cancellation of the visa, and gives it a fair reading, it is apparent that, while the Minister was presented with a difficult decision, he appreciated that and took into account all factors both in favour of not cancelling Mr Huynh's visa as well as supporting the decision he ultimately made.
80 In that regard, he identified that Mr Huynh had a substantial criminal record, and particularly noted the most recent conviction and sentence of 5 December 2011 for armed assault with intent to rob.
81 He further noted that he had a discretion to cancel the visa, taking into account factors that weighed against and in favour of cancellation. He explicitly said he was mindful that Australia had a sovereign right to determine whether non-citizens who are of a character concern are allowed to remain in Australia.
82 In that regard, I note in passing that Griffiths J in Stretton emphasised the greater "policy" component to the discretion when exercised by the Minister personally, rather than a delegate.
83 The Minister also relevantly considered what he called the Government's commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens. That factor has been recognised as relevant to the exercise of the discretion in Moana, and confirmed in Stretton and Eden.
84 As to the particular criminal conduct concerned, the Minister regarded its nature and seriousness, and noted that an offence had been committed against a vulnerable member of the community. He, not unreasonably, considered that the relevant offence was viewed very seriously.
85 In particular, the Minister noted how Jenkins J in the Supreme Court had described the offending. In particular, he noted that Mr Huynh used a weapon to attempt to rob an obviously disabled man, causing injuries to the victim.
86 He also noted that Mr Huynh was sentenced to two years imprisonment wholly suspended for 12 months for this offence.
87 Again, the Minister noted that Mr Huynh received a sentence that was a further indication of the seriousness of the offending. His comments, at [14] of his reasons, that dispositions involving an incarceration of the offender are the last resort of the sentencing hierarchy and that he had considered the Court viewed the offending as serious, are both factually accurate. Below I have found that there was nothing misleading or irrelevant about these particular remarks and the Minister's reliance on them, in the course of dismissing ground 4 of this application.
88 The Minister also, not irrelevantly, had regard to the frequency and cumulative effect of Mr Huynh's total criminal history. He referred, again not irrelevantly, to a lengthy criminal record in New South Wales. The Minister noted that terms of imprisonment had been imposed in New South Wales.
89 Then the Minister also, again not irrelevantly and fairly, noted that Mr Huynh's criminal record in Western Australia prior to December 2010 was "substantially for less serious and non-violent offences" and he expressly accepted that his general conduct improved during that time. He noted that Mr Huynh had not been convicted of any further offences since his conviction in December 2011.
90 Again, relevantly and fairly, and recognising one of Mr Huynh's important contentions in this case, the Minister expressly observed that there was an approximately ten year gap when Mr Huynh had not committed serious or violent offences and that there was no conviction of a serious offence between 30 August 2000 and 5 December 2011. But the Minister said:
Nonetheless, I find that the violent nature of his conduct on 1 December 2010 represented an escalation in seriousness in his offending, given his prior criminal history consisted of mostly non-violent dishonesty and drug offences.
91 In relation to such an observation or finding, I consider that the reasonable minds of Ministerial decision-makers might differ, but it cannot be said that that statement falls into any of the categories meriting the description of legally unreasonable, outlined by Allsop CJ in Stretton above. The Minister, in my view, had a "genuinely free discretion", as the plurality in Li called it, when characterising and evaluating the nature of the offending and its relative significance in this regard.
92 Similarly, in my view, the Minister had a genuinely free discretion when he came to consider the risk to the Australian community, as he did in his reasons.
93 In that part of his reasons, the Minister considered that Mr Huynh's ability to remain free of drugs would have a significant influence on his likelihood of reoffending. The rationality of that statement cannot be doubted. He referred in that regard to some of the New South Wales offences and how drugs had played a role, including heroin usage.
94 The Minister further regarded what Jenkins J said in sentencing Mr Huynh for the offence of 1 December 2010, and noted, in particular, the tragic death of his young daughter and his financial state, which helped explain his relapse into heroin use. The Minister expressly accepted that Mr Huynh was in a severely distressed emotional state at the time of the offence.
95 The Minister also noted that Mr Huynh had provided references to the Supreme Court from a number of community organisations and the prison chaplain that led Jenkins J to regard his prospects of rehabilitation positively. He further noted that Mr Huynh had made positive steps toward rehabilitation.
96 Having regard to relevant information, he accepted that Mr Huynh was resolved to maintain his progress towards rehabilitation, continue with employment and support his family.
97 But the Minister - and again one must accept, in my view, that this question also falls into the area of the Minister's genuinely free discretion - stated that he remained guarded about Mr Huynh's future prospects of remaining free of drugs. He gave express consideration, however, to Mr Huynh's general conduct in the community since the expiry of his suspended prison sentence on 4 December 2012.
98 The Minister referred to the fact that Mr Huynh had previously been warned about his criminal conduct following a decision not to deport him, which he acknowledged on 19 November 1998. The Minister also noted that he had considered Mr Huynh's visa was cancelled on 19 December 2002 because of serious offending, although he was later, after four and a half years of not holding a visa, granted a fresh visa on 20 August 2007.
99 The Minister noted, as he reasonably was entitled to do, that Mr Huynh had been convicted since 20 August 2007 of further dishonesty and driving offences as well as the most recent offence of armed assault with intent to rob.
100 Ultimately, the Minister, having regard to the past criminal history, as well as recent events, found that Mr Huynh had disregarded opportunities to not commit further offences afforded to him by a prior departmental warning, and the grant of a permanent visa by the former Minister on 20 August 2007. This may be regarded by some as a harsh assessment by the Minister, considering the extenuating circumstances in which the 2010 offence occurred, but it cannot be said to be wrong.
101 The Minister also considered the various assessments as to likelihood of reoffending. He concluded that Mr Huynh continued to progress with efforts at rehabilitation and found "Mr Huynh to have a low likelihood of reoffending".
102 But then the Minister added significantly that, if Mr Huynh did engage in further offending of a similar violent nature, it could result in physical harm to members of the Australian community. On the one hand, it may be said that this is a very easy thing to say, and has about it the ring of a verbal formulation to justify on predetermined outcomes. For how can a visa-holder disprove such an assessment? On the other hand, given all the relevant factual circumstances, how can it be said that such a consideration is not reasonably open to the Minister? It cannot be said that the Minister in making his decision did so on the basis that Mr Huynh would not reoffend in the future. To the extent that on behalf of Mr Huynh it is suggested, in his written submissions, that this application should be determined on the basis that there is no basis to a finding that Mr Huynh may reoffend in the future, that does not reflect the Minister's finding. It also, as the Minister's counsel has pointed out, is not the nature of the representation that was made on behalf of Mr Huynh to the Minister before the decision was made. At material times, the parties accepted that Mr Huynh had a low likelihood of reoffending.
103 In those circumstances, as the Full Court has observed in both Stretton and Eden, the formation of a view by the Minister that if a person in Mr Huynh's position did engage in further offending of a similar violent nature, it could result in physical harm to members of the Australian community, was open to him. There is no suggestion that the Minister did not genuinely consider this concern and hold the view he expressed. Reasonable Ministerial minds might differ about whether or not the low likelihood of reoffending is low or very low, but it is not suggested that it is nil. In those circumstances, the significance of that factual finding or adoption of that discretionary consideration by the Minister in this case must be considered to fall within the area of his genuinely free discretion.
104 The Minister also gave express consideration to the best interests of the two minor children of Mr Huynh, his relationship with them, and the fact that he had indicated that his partner and their children would not accompany him to Vietnam in the event his visa were to be cancelled. The Minister accepted he had an ongoing and close relationship with his children and that he shared parental responsibilities with his de facto partner.
105 The Minister further said he was mindful of the expectations of the Australian community that non-citizens who commit serious crimes in Australia can, and should, have their visa cancelled.
106 He also recognised, on the other hand, that Mr Huynh had been part of the Australian community for many years since childhood, and that the Australian community would recognise that and afford him a higher level of tolerance. He added that the Australian community also expects non-citizens to obey Australian laws while in Australia and that Mr Huynh had breached this trust.
107 Thus, he found it was appropriate to cancel the visa held by such a person.
108 The Minister further expressly considered Australia's non-refoulement obligations and Mr Huynh's ties to Australia. He also had regard to the impediments that Mr Huynh would face if removed from Australia to his home country. In that regard, he noted his immediate family, including father, mother and siblings, continued to reside in Vietnam and that he visited them on two occasions while living in Australia.
109 The conclusion that the Minister thus reached, at [63]-[69] of his reasons, was, in my view, open to the Minister as the decision-maker under s 501(2) of the Act. The factors relevant to the exercise of that discretion were carefully and reasonably noted. The Minister purported to balance his consideration of the countervailing factors in favour of and against cancellation of the visa. As noted above, it was also open to the Minister in the exercise of his genuinely free discretion to take into account broader policy matters, including the expectations of the Australian community, as the Minister saw them.
110 Ultimately, the Minister was swayed by the fact that Mr Huynh had committed a very serious crime in recent times, that the Australian community could be exposed to great harm should he reoffend in a similar fashion, and that the Minister could not rule out that possibility.
111 Having noted the factors that might be said to outweigh cancellation of the visa, the Minister ultimately said he reached the decision to cancel the visa because Mr Huynh represented "an unacceptable risk of harm" to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.
112 While there is always a danger that an administrative decision-maker, including a Minister, may rely on tried and true formulations in giving reasons for decisions likely to be contentious, including those that have survived earlier judicial scrutiny, it is not alleged, and indeed on the materials before the Court cannot be said, that the Minister did not give genuine consideration to all relevant considerations in the balancing exercise required in this case.
113 These, as the Full Court in Stretton and Eden has recognised, are no doubt difficult matters of ministerial decision-making. By the Act, however, that decision-making has, on this instance, been entrusted to the Minister personally. As the authorities referred to above demonstrate, there is an area of genuinely free discretion of the Minister, on an occasion such as this. It is not demonstrated that the decision ultimately made by the Minister to cancel Mr Huynh's visa is legally unreasonable. It may be considered by other persons as unfair and unreasonable in a broader humanitarian or policy context, but it cannot be said it was a decision not reasonably open to the Minister who exercised the discretion. This Court cannot conclude that the decision made fell outside the area of a genuinely free discretion such that it can be categorised as a legally unreasonable decision.
114 For these reasons, grounds 1 to 3 must fail.