Consideration
34 The applicant's submissions were, to a large extent, directed to the merits of the Decision. However, the grounds upon which the Decision can be challenged in this Court are limited to judicial review grounds, as distinct from the merits of the decision.
35 The applicant's submissions did not specifically address each of the particular grounds set out in his amended notice of application for judicial review, but were expressed more generally. In these circumstances, it will be convenient to set out each of the main arguments raised by the applicant followed by my consideration of the argument.
36 The applicant first submitted that the Assistant Minister's "assertion" that he was not remorseful was "unfair and unreasonable". In particular, the applicant contended that: the Assistant Minister had observed in the Statement of Reasons that the applicant did not mention the victim in his 2 June 2016 statement, and had viewed that omission as an indication that his expression of remorse was self-serving; the applicant rejected this suggestion because he had stated how deeply ashamed and remorseful he was and that he accepted responsibility for his actions, noting that he understood that his actions had caused harm to another person; and to "assert that my remorse expressed is self-serving because of a non-mention of the victim is unfair and unreasonable". The applicant also stated that, when he was charged with the offence, he was not allowed to have any contact with the victim and, therefore, was unable to offer an apology. He noted that he had recently sought to apologise to the victim by sending her a message on social media. A copy of that message was annexed to the applicant's second affidavit.
37 The matters raised by the applicant, as set out in the preceding paragraph, do not establish any of the grounds for judicial review relied on by the applicant, or otherwise establish jurisdictional error. As noted by the Minister in his submissions, the relevant authorities concerning the review of administrative decisions on the ground of unreasonableness were summarised by Bromberg J in BMX15 v Minister for Immigration and Border Protection (2016) 244 FCR 153 at [14]-[17]. In particular, his Honour said at [14]:
In two recent judgments, Allsop CJ, Griffiths and Wigney JJ have considered the content of the requirement that decisions be legally reasonable, which is to say that they must not be legally unreasonable. The first, Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, contains a detailed discussion of that concept as set out in particular in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (see in particular Allsop CJ at [4]-[13] and Griffiths J at [52]-[62]). In the second, Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158, their Honours summarise in seven points what falls from Li, Singh, and Stretton, noting that the seven-point summary does not supplant or derogate from those cases. The seven points are these:
[58] First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making.
[59] Second, the Court's task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory. It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision's reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker. Nor does it involve the Court remaking the decision according to its own view of reasonableness.
[60] Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an "outcome focused" conclusion without any specific jurisdictional error being identified.
…
[62] Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of "decisional freedom" within which a decision-maker has a genuinely free discretion. Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness. Such a decision falls within the range of possible lawful outcomes of the exercise of the power.
[63] Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute. The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making. The evaluation is also likely to be fact dependant and to require careful attention to the evidence.
[64] Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes.
[65] Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary. That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are "plainly unjust", "arbitrary", "capricious", "irrational", "lacking in evident or intelligible justification", and "obviously disproportionate". It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a "checklist" exercise. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
(Citations omitted.)
Applying these principles in the present case, the matters raised by the applicant do not establish legal unreasonableness. Although other decision-makers may have taken a different view (taking into account, in particular, [13]-[17] of the 2 June 2016 statement), it was open to the Assistant Minister to form the view that he did, namely that the applicant had made "very limited mention of the victim" in the 2 June 2016 statement, and to rely on this matter in rejecting the applicant's representative's characterisation of the applicant's remorse as "deep" (see the Statement of Reasons, [56]). Insofar as the applicant sought to rely on his recent apology to the victim by way of social media, this was not before the Assistant Minister and is therefore not relevant to the application for judicial review.
38 The applicant next submitted that: the Assistant Minister, in the Statement of Reasons, had suggested that the fact that the applicant had appealed his convictions in the higher courts indicated a lack of insight into the seriousness of his offences and that he had not taken responsibility for his actions; this "assertion" should be rejected because he was charged with very serious offences and believed he was innocent; he wanted to pursue the appeals to establish his innocence; and it did not follow that he did not take responsibility or that he had no insight into the reality of his offences. The applicant also referred to the advice he was given in relation to the merits of pursuing the appeals in the higher courts and the decisions that he had made based on that advice (some of which he regretted in hindsight). The applicant noted that he had now served his full two year sentence and that he had "not recorded a single unacceptable incident nor been involved in any criminal behaviour".
39 The matters set out in the preceding paragraph do not establish any of the grounds for judicial review relied on by the applicant, or otherwise establish jurisdictional error. At [37] of the Statement of Reasons, the Assistant Minister stated that, given that the applicant's convictions remained undisturbed by the higher courts, "I give no weight to his ongoing claims of innocence and consider them to demonstrate a lack of insight into the realities of his offending". It appears that it was the applicant's ongoing claims of innocence that the Assistant Minister considered to demonstrate a lack of insight into the realities of his offending. It was open to the Assistant Minister to reason in this way.
40 The applicant's third main argument was that the Assistant Minister's reliance on the sentencing remarks to form an adverse view of his "remorse, character and likelihood of reoffending" was "unfair and unreasonable". The applicant noted that: when he did not plead guilty to the charges, the prosecution "interpreted this as not showing remorse", and this was then recorded in the judge's sentencing remarks; he did not take the witness stand during the trial based on legal advice that he received at the time; to rely on the sentencing remarks in coming to a conclusion about his level of remorse was "inaccurate"; the Assistant Minister had shown "bias" in not taking into consideration the positive statements found in the sentencing remarks; and, in assessing his character, relevant past and present conduct should have been taken into consideration, not just the offences that had been committed.
41 In my view, it was open to the Assistant Minister to rely on the sentencing remarks in the way that he did. The Assistant Minister referred to the sentencing remarks in several paragraphs of the Statement of Reasons, making clear that he had regard to the whole of those remarks. The matters raised by the applicant, as set out in the preceding paragraph, do not establish any of his grounds of judicial review, or otherwise establish jurisdictional error.
42 The applicant's fourth submission was that, for the Assistant Minister to suggest that he could not rule out the possibility of further offending, was "unfair and unreasonable". This was said to be the case having regard to: the evidence provided by the applicant, his family, his community and health professionals to the effect that the applicant was unlikely to re-offend; the fact that this was the applicant's first offence and he did not have any relevant criminal history or "behaviour pattern issues or social issues" suggesting a likelihood of re-offending; the fact that the applicant was on bail for a year before his trial and did not pose a risk to the community; and the fact that the applicant had been compliant and law abiding, consistent with his nature, since being charged and during his time in jail and detention. The applicant also submitted that: the Assistant Minister did not consider the relevant recommendations in the Clinical Psychologist's Report; the recommendations of, and the protective factors referred to by, the clinical psychologist in that report supported a conclusion that there was a low risk of the applicant re-offending; and although the Assistant Minister referred to the report, he did not consider the recommendations in the report. The applicant further submitted that the Assistant Minister did not conduct a character assessment but focused only on his offences.
43 The matters raised by the applicant, as set out in the preceding paragraph, do not establish any of his grounds of judicial review, or otherwise establish jurisdictional error. It was open to the Assistant Minister to evaluate the risk of re-offending in the way that he did: see BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78 at [44]. The Assistant Minister had regard to the submissions and material provided by the applicant, including the Clinical Psychologist's Report. The Assistant Minister discussed that report in several paragraphs of the Statement of Reasons and quoted the key recommendations at [52]-[54] of the Statement of Reasons.
44 The applicant's fifth main argument related to two particular comments made by the Assistant Minister at [48] of the Statement of Reasons. These were, first, that the absence of formal courses and counselling gave him "pause" in accepting the "full efficacy" of the rehabilitative programs described by the applicant's representative as "in depth" and, secondly, given the applicant's demonstrated commitment to his Christianity prior to his offending, it was unclear what impact his further bible studies were likely to have on his likelihood of re-offending. In response to these comments, the applicant submitted that: he was not recommended for any courses by corrections services; he was not serving a sentence that necessitated his participation in any rehabilitative programs in the corrections service; "even though I applied to be enrolled in various courses I was never offered the opportunity"; such an opportunity had only become available to him recently when he was transferred from the Yongah Hill Immigration Detention Centre to Christmas Island, where he "wasted no time and enrolled"; and, in the short period since then, he had attended formal counselling courses. Certificates from these courses were annexed to the applicant's second affidavit.
45 In my view, the matters set out in the preceding paragraph do not establish any of the applicant's grounds of judicial review, or otherwise establish jurisdictional error. The statements by the Assistant Minister in the Statement of Reasons need to be read in the context of the applicant's representations and the material provided by the applicant in support of the request for revocation. On 20 May 2016, the applicant's agent provided two "achievement certificates" to the Department (CB 80, 95). These related to bible study courses undertaken by the applicant while at Woodford Correctional Centre. In the 2 June 2016 statement, the applicant stated at [37] that "[m]y rehabilitation has not been in the form of formal counselling or coursework, but rather personal and professional reflection particularly facilitated by my wife and uncle" (CB 208). In the agent's 2 February 2017 submission, the agent submitted that the applicant had completed several courses and attended various rehabilitation programs during his imprisonment and detention (CB 155-156). The agent's email dated 13 February 2017 identified specifically the documents that were relied upon in relation to rehabilitation (CB 163, 167). These did not include the certificates annexed to the applicant's second affidavit (some of which post-date the Decision). In the context of these representations and the material the applicant had provided, it was open to the Assistant Minister to make the statements that he did at [48] of the Statement of Reasons. To the extent that the applicant seeks to rely on certificates that post-date the Decision, these are not relevant to his application for judicial review of the Decision. To the extent that the applicant seeks to rely on certificates annexed to his second affidavit with dates before the Decision, these were not provided by or on behalf of the applicant in support of his request for revocation. In these circumstances, it was not incumbent on the Assistant Minister to have regard to this material. As Tracey J observed in Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [42], "[o]nce the invitation to make representations is extended to a visa holder it falls to the visa holder, if he or she wishes to do so, to provide information and submissions to the Minister in an effort to persuade the Minister that a revocation decision should be made".
46 Finally, the applicant submitted that: the Assistant Minister had accepted that the applicant, his wife and family were likely to face hardship, but gave "less weight to how relevant it is to revoke the original decision"; this was "inhuman"; and the applicant had been in detention for over a year and had witnessed people with "much worse criminal history" being released into the community. The applicant also submitted that the Assistant Minister, in making the Decision, did not comply with the rules of natural justice or procedural fairness, as the applicant was not previously warned that criminal conduct could result in his deportation or visa cancellation, as others had been.
47 The matters referred to in the preceding paragraph do not establish any of the applicant's grounds of judicial review, or otherwise establish jurisdictional error. The weight to be given to the hardship that the applicant and his family would suffer (if the cancellation decision was not revoked) was a matter for the Assistant Minister to determine. The rules of natural justice or procedural fairness did not require a warning to be given before the applicant engaged in the criminal conduct. If the applicant contends that the process adopted following the cancellation decision did not comply with the rules of procedural fairness, there does not appear to be a basis for such a contention. The applicant was given the opportunity to make representations in support of his request for revocation of the cancellation decision and these representations were taken into account by the Assistant Minister.
48 For these reasons, none of the grounds of judicial review relied on by the applicant in his amended notice of application for judicial review is made out. It follows that the application is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, I will also order that the applicant pay the Minister's costs.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.