No probative evidence for lack of insight finding
80 The Minister made only one finding about the 2012 conviction. This was the finding that Mr Mason's statement that he did not realise that he had re-offended disclosed "a lack of insight and awareness in relation to his conduct". As explained below, there was no probative evidence of any lack of insight into the conduct that constituted Mr Mason's failure to comply with his reporting obligations, this being the conduct to which I understand the Minister refers.
81 Mr Mason's statement in his personal circumstances form was to the effect that he had not been aware that he had reoffended. He had added, apparently by way of explanation, that "there was an accidental breach of condition which was reported. I was fined $300.00". It may be that, as his counsel submitted, Mr Mason's answer was a product of the fact that he understood the reference to "reoffending" in the personal circumstances form to be a reference to further offending in the nature of his original offence (possessing child pornography). Reference to the 6 November 2017 submissions made to the Minister by Mr Mason's legal representatives (see [112] below) indicates this was how his lawyers understood the term "re-offending". If so, it was only natural that Mr Mason accept their opinion on what might be regarded as a legal issue.
82 Equally, however, it seems to me that Mr Mason may have been intending to communicate that he did not know at the time he downloaded the relevant software onto his computer or immediately thereafter that he had failed to comply with his reporting obligations because his acts were accidental and when he realised what he had done, he immediately sought to remedy the problem.
83 In fact, precisely what Mr Mason intended to convey was unclear, in large part because the material before the Minister (and therefore the court) did not include any information about Mr Mason's reporting obligations or about the Magistrates Court proceeding in which Mr Mason was convicted and fined. The information before the Minister about the 2012 conviction was limited. Apart from Mr Mason's statements in his personal circumstances form, there was an entry in a National Police Certificate referring to the conviction, and identifying the court, court date and court result. Plainly enough, this information did not indicate anything about the level of Mr Mason's "insight" into the offence.
84 The material placed before the Minister by Mr Mason and legal representative was in substance all to the same effect. On this account, he accidentally downloaded software with a chat feature; and as soon as he became aware that he had such a feature, he removed it and notified the relevant authority of a consequential change in his email. He recounted these events to the authority at his subsequent annual review. The relevant authority considered that by reason of these events he had failed to comply with his reporting obligations. I interpolate that since there was no information about Mr Mason's reporting obligations before the Minister, there was nothing to indicate why the authority took this view.
85 Ms Matthews' report of 1 October 2017, which was before the Minister, stated:
About his breach of the Registry conditions, he had an old version of MSN on his computer and had updated it, he didn't know it had a chat component until his niece who was having trouble with her boyfriend contacted him via this way over Christmas. "A chat thing popped up … I didn't know it had that component". He deleted MSN and set up a new email service and reported to the Registry he had done so. He did not think to report his experience of the pop up chat function at the time but did so in his recount of why he had changed his email, at his annual review appointment. He was breached and it went to Court, "the Judge had trouble understanding what I had done". He was convicted and fined $300.00.
Although Ms Matthews expressed an opinion about Mr Mason's insight into his offence of possessing child pornography, she did not consider it necessary to express an opinion about his insight into this particular matter.
86 I have already referred to Mr Mason's (undated) statement about the events leading to the 2012 conviction at [10] above, which provided substantially the same information as Ms Matthews' report.
87 The information sent to the Department by Mr Mason's representative (and before the Minister) was also to much the same effect. In a letter to the Department dated 6 November 2017, Mr Mason's legal representative stated:
In December 2012, Timothy had his internet system upgraded by his provider MSM. Unbeknown to him, this upgrade created a chatroom. He only found that out by accident when he communicated to his niece in Adelaide and the chatroom feature popped up. He immediately removed the feature.
As an honest person, Timothy voluntarily reported this incident to the Sex Offenders Registry as part of his annual review.
The Registry considered it to be a breach of his condition. He was fined $300.00. But it was an oversight on Tim's part. He did not attempt to hide it.
(Bold in original)
In an email to the Department dated 8 November 2017, the representative stated:
The only minor breach was an accidental incident as a result of upgrading of his computer system by MSM which triggered a chatroom. Mr Mason volunteered the disclosure when he reported to the Sex Offender Registry. He was fined $300.00 for the breach.
88 None of this material provided any probative evidence for the Minister's finding that Mr Mason lacked insight into his impugned conduct. The position may have been different if, at the time he made his decision, the Minister had information about the reporting obligation with which Mr Mason had not complied, being the basis of Mr Mason's 2012 conviction. Without this information however, the Minister could not know what it was that Mr Mason had failed to do and whether this failure in truth demonstrated a lack of insight, notwithstanding on Mr Mason's unchallenged account (which the Minister mentioned at [14] of his reasons) that his action in downloading the chat feature was accidental, he deleted it on ascertaining it was there, and reported to the relevant authority that he had changed his email address immediately thereafter. The finding therefore lacked evident and intelligible justification, as counsel for Mr Mason submitted.
89 As the Minister acknowledged in argument, this finding (at [39] of the Minister's reason) fell under the heading "Risk to the Australian Community" and was part of the discussion of the nature of the risk that Mr Mason posed to the Australian community if he were to continue to reside in Australia.
90 The issue about risk arose because the Minister chose to be guided by Direction No 65 in making his decision. This Direction identified various issues for consideration in determining whether a visa should be cancelled, including "whether the non-citizen represents an unacceptable risk of harm to individuals … in the Australian community". The Direction provided that in considering the risk to the Australian community, consideration should be given to the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account information and evidence of the risk of the non-citizen re-offending; and evidence of rehabilitation achieved by the time of the decision…".
91 The discussion about whether Mr Mason represented an unacceptable risk to the Australian community was critical to the Minister's reasons and led to the Minister's cancellation decision. The Minister found (at [77]) that the community could be exposed to great harm if Mr Mason were to re-offend in a similar way to his 2008 offending; (at [78]) that this conclusion outweighed countervailing considerations against cancellation; and (at [80]) Mr Mason represented an unacceptable risk of harm to the Australian community, which led to the Minister's ultimate decision that Mr Mason's visa should be cancelled. In setting forth his ultimate conclusion, the Minister's reasons stated:
[76] Mr MASON has committed a very serious crime of a sexual nature, that of knowingly possess child pornography and Mr MASON and non-citizens who commit such an offence should not generally expect to be permitted to remain in Australia.
[77] I find that the Australian community could be exposed to great harm should Mr MASON re-offend in a similar fashion. I could not rule out the possibility of further offending by Mr MASON. The Australian community should not tolerate any further risk of harm.
[78] I found the above conclusion outweighed the countervailing considerations in Mr MASON's case, including his claims that he will suffer hardship if returned to Canada …
…
[80] In reaching my decision I concluded that Mr MASON represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations...
(Emphasis added)
92 As counsel for the Minister recognised, Splendido involved a not dissimilar issue in this connection. In that case a finding that Mr Splendido posed an unacceptable risk to the Australian community because of the likelihood that he would re-offend was also critical, leading the Assistant Minister to decide not to revoke a decision to cancel his visa under s 501CA. Justice Mortimer (with whom Moshinsky J agreed) held that, having decided to place this finding at the forefront of his reasons, the finding was required to be based on probative material: see Splendido at [52]. In that case, her Honour found (at [82]) that "[w]hat occurred was speculation and guesswork about what those prior convictions indicated about Mr Splendido's future conduct". In separate reasons, Wheelahan J substantially agreed: see Splendido at [132].
93 Splendido is, of course, a different case from the present, and the current discussion has focussed on only one of a number of matters on which the Minister relied in reaching the critical conclusion in this case. This was why counsel for the Minister emphasised the other factors to which the Minister referred in his discussion of the risk posed to the Australian community by Mr Mason, noting that the Minister did not expressly assign any particular weight to the different factors. The difficulty with counsel's argument is, however, that the 2012 conviction was material in the sense that it was the new fact that had arisen since the delegate's non-cancellation decision, some potentially relevant new fact being required as a matter of statutory construction before the Minister might re-exercise the power conferred by s 501(2): see [63]-[76] above. It was also the most recent potential indication that Mr Mason might pose a risk to the community. The Minister's only finding about this conviction - that Mr Mason lacked insight and awareness in relation to his offending conduct - was therefore a significant one. The fact that the Minister considered this factor to be important in assessing the matter of risk is also implicit in the Minister's reasons at [42], where the Minster referred to the representations that had been made on Mr Mason's behalf, before stating that "I have considered that Mr Mason does not believe he will ever re-offend as he is rehabilitated…". It may inferred that any weight that the Minister attached to Mr Mason's stated beliefs about his rehabilitation would have been affected by the Minister's finding that Mr Mason lacked insight into the conduct leading to the 2012 conviction. Bearing in mind the significance of the 2012 conviction, one cannot infer that a finding as to Mr Mason's lack of insight had negligible weight in the Minister's consideration. Rather, it may reasonably be assumed that the finding contributed to some material extent to the Minister's critical conclusion that Mr Mason's continued presence in Australia represented an unacceptable risk of harm to the Australian community.
94 As we have seen, however, the fact of his conviction did not support the finding that he lacked insight into his offending conduct. Without information about the reporting obligation that Mr Mason had breached, the Minister could not know what precisely Mr Mason had been obliged, but failed, to do. In these circumstances, it is very difficult to see how the Minister could have made any proper, genuine and realistic evaluation of Mr Mason's account of his offending conduct. Further, concerning the 2012 conviction, the Minister's reasons contain only a brief statement about Mr Mason's account of his conduct (at [14] and [38]) and the lack of insight finding (at [39]). It may be inferred from the fact that the Minister gave such limited attention to these matters that he did no more than advert to Mr Mason's account about the conduct that led to his 2012 conviction. I return to this matter below.
95 At the hearing, counsel for the Minister stated that, in so far as the reporting conditions breach was concerned, all that was before the Minister was the "fact of conviction and a description". There is no reason to doubt the correctness of this statement. It seems probable, however, that the Minister would have been aware that the information about Mr Mason's reporting obligations could have been readily obtained, at least by a simple enquiry addressed to the relevant State authority responsible for administering Mr Mason's compliance. Such an enquiry would have directed attention to the fact that Mr Mason was sentenced pursuant to the Registration Act, since his conviction for possessing child pornography was a registrable offence under that Act. As explained below, reference to the Registration Act would have disclosed Mr Mason's reporting obligations, what he was obliged but failed to do, and the nature of his offending.
96 Reference to the court book prepared by the Minister for this matter also indicates that this information might have been obtained even without an enquiry of the relevant State authority. This is because the court book contains a copy of a criminal record generated by Victoria Police dated 15 June 2015 stating that when Mr Mason was convicted of possessing child pornography, he was sentenced to "a registrable offence pursuant to the Sex Offender Registration Act 2004 and…to report to Victoria Police for a period of 8 years". It may be inferred from the fact that the Minister prepared the court book including this document (and some other documents mentioned below) that the document was in the Department's possession at the time the Minister made his decision. If so, then the Victoria Police record was also to be treated as being in the possession of the Minister: see Peko-Wallsend at 31. This record should have indicated that reference to the Registration Act would assist in identifying the nature of the offending that was reflected in Mr Mason's 2012 conviction and in assessing his claims about it.
97 Although nothing specifically turns on most of these matters, I observe at this point that, in addition to the features of Splendido to which I have already referred, there were other ways in which this case resembled that case. As in Splendido, the Minister's reasons are dated the same day as the circled note indicating the exercise of power (13 February 2018). Justice Mortimer's comment (at [23]) that "[t]heir length and content founds an inference that they were drafted and prepared before the [] Minister indicated how he proposed to exercise the power" is also applicable in this case. As in Splendido, there were no sentencing remarks available in connection with the 2008 offence of possessing child pornography, although the Minister did have access to and rely on an undated Victoria Police Summary of Charges attached to a Victoria Police, Department of Immigration and Border Protection Information Sheet. In this connection, I observe that Ms Matthew's report opined that "[t]he Police documentation … is of poor quality …" and set out her reasons for this view. Further, as in Splendido, the evidence about what precisely was before the Minister when he made his decision was unclear. The parties presented their arguments at the hearing on the basis that the Ministerial submission date stamped 29 January 2018 and its attachments, including the documents marked "Attachment A" through to "Attachment AM" in the index to the court book comprised the material before the Minister. There were other documents in the court book, however, such as the Victoria Police criminal record dated 15 June 2015 to which I have referred, the relevance of which was not discussed by the parties. As I have already indicated, it was unclear whether the 15 June 2015 document was in fact physically before the Minister when he made his decision, although it and other documents (e.g., a police record dated 27 September 1973 and emails between the applicant's legal representative and the Department) were included in the court book by the Minister and, so it may be inferred, were in the Department's possession at the time of the decision.
98 It may be said that, in the circumstances of the case, the Minister's failure to enquire about the nature of Mr Mason's reporting obligations and what he was obliged but failed to do was unreasonable in itself in the sense that no reasonable decision-maker would have proceeded to make a decision of the kind the Minister did without obtaining this information: see, e.g., Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 at [20]-[25] and Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22 at [50]-[51]. It is, however, unnecessary to explore this issue further as it seems to me the above discussion indicates an even more significant issue.
99 For the reasons already stated at [74]-[75], the Minister was bound, as a matter of statutory construction, to take the 2012 conviction into account in making his decision in 2018, including Mr Mason's claims about it and the relevance of the conviction, if any, on the other matters that fell for the Minister's consideration. Reading the Minister's reasons fairly and as a whole, however, the Minister gave very limited attention to the 2012 conviction. Instead, the Minister focussed almost entirely on Mr Mason's conviction for possessing child pornography in 2008 and, in substance, ignored the circumstances that were said by Mr Mason to relate to his conviction for failing to comply with reporting obligations in 2012, notwithstanding that the former would necessarily have been the focus of the delegate's decision in 2009, and the latter was highly material because it was the only fact relied on to enable the Minister to re-exercise the power in s 501(2) and cancel Mr Mason's visa.
100 As we have seen, the Minister mentioned the 2012 conviction in his reasons when he referred to Mr Mason's account of his offending conduct at [14] and [38]; and to Mr Mason's statement in his personal circumstances form (at [38]), finding (at [39]) that Mr Mason's statement about re-offending disclosed a lack of insight. The Minister also took into account that Mr Mason had not offended since his 2012 conviction (at [21]). It does not seem to me that the lack of insight finding, these brief references to what Mr Mason said about the offending, without more, and the Minister's statement at [21] of his reasons, were sufficient to constitute a legally sufficient consideration of the 2012 conviction in the circumstances of this case.
101 As the Full Court in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 at [46]-[47] observed:
Mere advertence to a matter required to be taken into consideration may not be sufficient to establish that it has been properly considered: cf. Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113 at [100], (2011) 179 LGERA 458 at 478 per Cowdroy J. The serious consequences confronted by an individual who has had a visa cancelled pursuant to s 501 may well require, in an appropriate case, such a conclusion being reached. Even a ritualistic incantation of a risk being, for example, an "unacceptable risk" or a "grave and serious risk", may not be sufficient to clothe a statement of reasons with impunity.
The reasons provided in every case must each be considered by reference to the facts of each particular case and must all be construed in a practical and common-sense manner and not with "an eye keenly attuned to the perception of error": cf. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 to 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
(Italics in original)
102 This was a case where the Minister did no more than advert to Mr Mason's claims about his failure to comply with reporting obligations and did not actively engage in evaluating the relevance of the 2012 conviction for the exercise of the discretion in s 501(2). As explained, the Minister was required to do more to satisfy the obligation to consider the new fact relied on to enliven the power to re-exercise that discretion in the circumstances of this case.
103 In Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352, the Full Court was required to consider whether the Minister had failed to give "proper, genuine and realistic" consideration as to whether the applicants' visas should be cancelled under s 501(3). The Full Court cautioned at [34] that:
The danger of using that or similar expressions has been emphasised in many cases in other contexts. For example, when the expression has been used in conjunction with the ground of judicial review relating to the failure to take into account a mandatory relevant consideration, courts have acknowledged that its use carries the risk of creating "a kind of general warrant, involving language of indefinite and subjective application, in which the procedural and substantive merits of any Tribunal decision can be scrutinised"…
104 After a careful examination of the authorities, the Full Court affirmed the principle that when a decision maker is required by statute to consider a claim or other mandatory criteria, the decision maker must engage in an active intellectual process directed at that claim or criteria: see Carrascalao at [35], [45]. The Court explained (at [45]-[46]) that:
This does not require the decision-maker to refer in the reasons for decision to every piece of evidence and every contention made by an applicant, and it may be that some material provided will not be relevant to the criteria. Also, in accordance with well-known authority, the reasons of the decision-maker should not be scrutinised "minutely and finely with an eye keenly attuned to the perception of error" (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ, as cited in Khadgi at [63] and Telstra v ACCC at [62]).
…[U]nder s 501(3), the Minister has a discretion to cancel a visa if the Minister reasonably suspects that the person does not pass the character test and is satisfied that the cancellation is in the national interest. … In our view … the ordinary meaning of the word "consider" in this judicial review context requires the Minister to engage in an "active intellectual process" in assessing the merits of a case when contemplating the possible exercise of the power under s 501(3).
105 As the Full Court observed, to answer the question whether there had been an active intellectual process, a reviewing Court is required to make an evaluative judgment, "taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case": see Carrascalao at [47]. Of course, as the Full Court there said (at [48]) "a finding … that the Minister has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof".
106 Each case will depend on its own facts and circumstances. In this case, I have accepted that the Minister's lack of insight finding was an adverse finding relating to the 2012 conviction that contributed to some material extent to the Minister's critical conclusion that Mr Mason's continued presence in Australia represented an unacceptable risk of harm to the Australian community. As already stated, this finding was not based on any probative evidence. There was no other occasion when it could be said that the Minister showed that he was actively involved in assessing the relevance of the 2012 conviction to the exercise of his discretion under s 501(2).
107 In this case, as we have seen, Mr Mason's account of his conduct leading to his 2012 conviction was clearly and consistently set out by him, in statements made by his representative on his behalf, and in Ms Matthews' 1 October 2017 report: see [10], [38], [80], [83], [85], [87] and [88] above. These were apparently before the Minister at the time he made his decision.
108 Other than to recite what Mr Mason said about the offending and to opine that his statement on his personal circumstances form showed "a lack of insight" in relation to his conduct, the Minister's reasons do not engage at all with Mr Mason's account of what had happened. Further, the absence of any reference to the nature of the reporting obligations, including the nature of his breach, emphasises that the Minister did not actively set out to evaluate Mr Mason's account, the nature of the offence for which he had been convicted in 2012, and the relevance of that conviction to the exercise of his discretion.
109 Reference to the Registration Act shows that it provides for the offence of failing to comply with reporting obligations. In particular, s 46(1) of the Registration Act (as it stood at the time of Mr Mason's 2012 conviction) provided that that "[a] registrable offender must not fail to comply with any of his or her reporting obligations without a reasonable excuse". The maximum penalty for the offence was 5 years imprisonment. "Reporting obligations" were the obligations imposed on a registrable offender by Pt 3 of that Act. The obligations in Pt 3 were diverse and wide-ranging. Plainly enough, the seriousness of any offending conduct would vary according to the nature of the reporting obligation that was breached and the circumstances in which it was committed, as well as other considerations. Relevantly here, Pt 3 included the obligation that a registrable offender report to the Chief Commissioner of Police "any change in his…personal details within 14 days after that change occurs": see s 17(1). The "personal details" which must be reported range from any "instant messaging user names" or "chat room user names" used or intended to be used through the Internet (s 14(1)(dd)(ii) and (iii)) to "the names and ages of any children who generally reside in the same household" as the registrable offender (s 14(1)(e)).
110 If Mr Mason's account were accepted, the conduct which apparently led to his conviction for failing to comply with reporting obligations under s 46 of the Registration Act was his failure to report to the Chief Commissioner of Police, within 14 days, the instant messaging or chat room user name he used when he spoke to his niece. In this case, the fine imposed on Mr Mason was indicative of the fact that the sentencing Court considered his offence was at a very low level of seriousness. Of course, whether Mr Mason's account of his offending was accepted for the purpose of the decision making under s 501(2) was a matter for the Minister. The significance of the conviction for such an offence for the exercise of the discretion in this provision was also a matter for the Minister. So too the significance of the 2008 conviction was a matter for the Minister, and the Minister was not obliged to accept any of Mr Mason's submissions. Reference to the Registration Act confirms, however, that the Minister could not make a finding with respect to Mr Mason's 2012 conviction, its relevance for his discretion, Mr Mason's statements about it, or Mr Mason's insight into the offending without having regard to the nature of Mr Mason's offending, which was, plainly enough, reflected in the sentence imposed - a $300 fine.
111 In assessing the Minister's consideration of Mr Mason's 2012 conviction, the nature and extent of the other information and claims placed before the Minister by Mr Mason also fell for consideration. Besides providing an account of his offending conduct, Mr Mason, through his legal representative, also provided information and made claims about other matters of potential relevance to the Minister's exercise of discretion. In the 6 November 2017 submission, Mr Mason's representative set out in some detail what was in substance a chronology of the events that had occurred since Mr Mason had received the Department's advice that the delegate had decided not to cancel his visa in June 2009, commencing with his release from prison after conviction and sentence for possessing child pornography. This included the information that:
33. On 5 September 2017, a notice was sent to Timothy with intention to consider cancellation of his visa under s 501(2) of the Migration Act 1958.
34. Timothy was obviously shocked and confused. So were his employer … and other workmates.
35. They considered that Tim has been a reformed person and has paid the penalty for the crime he committed. There is no obvious reason for revisiting the crime and repeating the intention to cancel procedure.
112 The same submission addressed the relevance of his 2008 conviction to the decision making task that the Minister, acting personally, was to undertake. It was submitted that:
…Mr Mason was considered for cancellation in 2009, and it was decided not to cancel his visa. He has not offended since that time. We submit that it is unjust in the extreme to revisit that issue in light of no further material offending…
We submit that Timothy has been penalized for his crime that he committed nearly ten years ago. He has proven to have rehabilitated. He no longer poses a threat to the society. On the contrary, he is a major contributor to the success of a leading business in the direct mails industry. All the reference letters demonstrated that he is a model, law-abiding citizen who has spent most of his life in Australia.
113 Also in relation to the risk to the Australian community, the 6 November 2017 submission specifically said:
We submit that all indications of the behaviour of Timothy Mason since his imprisonment have been positive. …
Since his release from jail and re-joining society, he has been a model resident. He has never broken any law. The only breach was an inadvertent act which he volunteered the information to the sex offender registry. He did not try to hide the fact. The resultant fine of $300 reflected how the Registry official considered it to be a minor breach. Other than that incident, he has not deliberately or otherwise commit[ted] any crime. He would not be a risk to any member of the community. In fact, he was commended by the Salvation Army for voluntary work. …
114 While it was for the Minister to make findings touching the matters raised in these submissions and other matters, the Minister was required to consider the significance of the 2012 conviction in the exercise of his discretion, which meant giving the 2012 conviction "proper, genuine and realistic" consideration. This meant that the Minister had to actively engage with the issues to which it gave rise, including what Mr Mason should have done but failed to do with respect to his reporting obligations, whether Mr Mason's account about his offending should be accepted in whole or in part, the relevance of the 2008 conviction given the passage of time and the prior decision not to cancel his visa on account of that conviction, what Mr Mason had done since his 2012 conviction and, importantly, to what extent the new fact of this conviction bore on the exercise of the Minister's discretion, bearing in mind the earlier decision not to cancel his visa having regard to his original conviction in 2009.
115 Significantly in this case the Minister could not proceed to make a decision under s 501(2) as if there was no prior administrative history that bore on his exercise of discretion. To do so would be to ignore Mr Mason's submissions concerning the effect of that process on him and, critically, to make a decision without regard to the legal context in which it was being made. In this case, the Minister's reasons focussed almost entirely on Mr Mason's 2008 conviction. The analysis of the significance of this conviction proceeds almost as if the delegate had not made the decision under s 501(2) in 2009 not to cancel Mr Mason's visa. This is so, in my view, notwithstanding that the Minister adverted, in his reasons at [45]-[46], to the fact that a delegate had previously considered whether Mr Mason's visa should be cancelled under s 501(2); that Mr Mason had been notified in June 2009 of the delegate's decision not to cancel his visa; and, impliedly, that the 2012 conviction constituted the fresh information that attracted the Minister's reconsideration of the exercise of power in s 501(2).
116 It was not enough, in the circumstances of this case, for the Minister merely to advert to the delegate's previous decision. Absent the 2012 conviction, the Minister's power to set aside the delegate's decision was governed by s 501A(2) or (3). Mr Mason's submissions raised the evident issue of whether the significance of the 2008 conviction had waned with the passage of time, including because almost ten years had passed since the delegate had decided that Mr Mason's visa should not be cancelled on account of it. Related to this, there was a further issue concerning the significance of the 2012 conviction, given the nature of the offending and the fact that by the time of the Minister's decision making (which depended on the fact of that conviction) six years had passed since that event. This was also in substance raised in Mr Mason's submissions.
117 In the circumstances of this case, had the Minister given proper, genuine and realistic consideration to this administrative history, the Minister might reasonably have been expected to acknowledge in some way the basal importance of finality in administrative decision making and the potential inhumanity of subjecting people to continuing uncertainty about their visa status. The Minister did not, however, advert to the potential for practical injustice - referred to in Mr Mason's submission - where a fresh decision is made focussing on essentially the same wrongdoing as the decision lawfully made many years before, but bringing to an end the permission that had been given to him to remain in Australia notwithstanding the wrongdoing. The Minister did not, moreover, advert to the possibility that this injustice would be exacerbated (as Mr Mason's submission indicated) if the Minister were to enter upon the new decision making because of a conviction attracting a modest fine six years previously without considering whether that conviction had any significant bearing on the exercise of the discretionary power in question.
118 In all the circumstances of this case, the Minister's decision was unreasonable in the relevant sense in that the Minister made a finding of some materiality without probative evidence and did not consider matters that under the applicable statutory regime he was bound to consider. For this reason, the decision lacked evident and intelligible justification: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229 and Li at [72].
119 French CJ explained in Li at [27]:
In Wednesbury Corporation, Lord Greene MR observed that the word "unreasonable" in administrative law was used to encompass failure by a decision-maker to obey rules requiring proper application of the law, consideration of mandatory matters and exclusion from consideration of irrelevant matters: "If he does not obey the rules, he may truly be said, and often is said, to be acting 'unreasonably'"…
Similarly, as Hayne, Kiefel and Bell JJ said in Li at [76], "[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification": see also Li at [69].
120 For these reasons, the decision of the Minister to cancel the applicant's visa under s 501(2) of the Migration Act should be set aside for jurisdictional error.
121 Having reached this conclusion, it is unnecessary to discuss the applicant's second ground. If it were necessary to do so, I should reject this ground, largely for the reasons advanced by the Minister: see also FPU18 v Minister for Immigration and Border Protection [2018] FCA 1606 at [49] (Moshinsky J).