McKendrick v Minister for Immigration and Border Protection

1. The application be dismissed.
2. The applicant pay the respondent's costs of and incidental to the application, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

(Revised From Transcript) LOGAN J: 1 On 18 October 2017, the then Minister for Immigration and Border Protection, the Honourable Peter Dutton MP, exercised a discretion vested in him by s 501(2) of the Migration Act 1958 (Cth) (the Act) to cancel a Class TY (Subclass 444) Special Category (Temporary) visa held by Ms Shannon Mariameno McKendrick. Ms McKendrick, though a long-term resident of Australia, is a citizen of New Zealand. The effect of the Minister's decision, as set out in s 501F(3) of the Act, was that any other visas held by Ms McKendrick other than a Protection visa, or one specified in the Regulations, were cancelled by operation of law. 2 In Ms McKendrick's particular circumstances, that meant that she did not hold any other visa. In turn, that ministerial decision made her amenable not just to immigration detention but also to deportation from Australia. Ms McKendrick has sought the judicial review of the Minister's visa cancellation decision. It is no adverse criticism of Ms McKendrick, who has acted for herself with singular courtesy and focus to the issues, to describe the judicial review application as one which reflects a lay person's endeavour to come to grips with difficult concepts of jurisdictional error under our public law. 3 The best way of illustrating that is to set out, in full, the grounds of review as found in the originating application: 1. The Decision of the Respondent is affected by Jurisdictional error in that the Respondent committed a jurisdictional error as it failed to have regard to a relevant consideration whilst exercising it's discretion. NATURE OF HARM In relation to the nature of harm the Respondent took into account at [paragraph 59 of statement of reasons for cancellation of visa under s. 501(2) of the migration Act 1958] the Administrative Appeals Tribunal which can be said to be accurately reflected as the Respondent states at [paragraph 59 of statement of reasons for cancellation of visa under s. 501(2) of the migration Act 1958] "I note the AAT categorised the nature of harm to the Australian community if Ms Mckendrick was to re-offend as "extremely serious". The AAT noted the repetition of offences such as burglary and stealing would cause feelings of insecurity and violation with in the community. The AAT also noted the repetition of driving offences, such as those dealt with by the Courts in 2008, would involve a risk of serious physical harm or death to members of the public". The Respondent at [paragraph 61 of statement of reasons for cancellation of visa under s. 501(2) of the migration Act 1958] appears to adopt those AAT remarks to view the nature of harm if the applicant was to re-offend to be serious. The respondent is only relying and mentioning partial comments of the AAT as in conclusion of [paragraph 76 of the AAT decision] it states "The offences committed by the applicant are very serious, involving significant invasion of property rights of the Australian citizens including the invasion of their homes. In addition, at times the conduct of the applicant has placed others at risk of physical harm. As I already indicated I have decided that there is a reasonable likelihood that the applicant will engage in similar activity in future. I have reached this conclusion on the basis that the applicant's criminal activity has been largely as a result of her drug addiction and that to date she has only received limited assistance in managing her addiction". On balance, the court is likely to be satisfied that the AAT recognised the applicant's criminal history was reflected due to not achieving sufficient rehabilitation at the time of the occurrence of these offences. The submissions by the applicant to the Respondent prior to cancellation of this visa address the rehabilitation achieved which has been and would be a primary factor in the applicant not re-offending in the manner described by the AAT which was to be reviewed as "extremely serious". However, somewhat inexplicably, the Respondent appears to have failed to consider the applicant's submissions in a logical manner including the weighing of it as part of the balancing process advocated by the Minister's own Direction No. 65. The issue that arises is whether stated in this way, the Respondent has adequately reached a decision or whether he has simply failed to exercise his jurisdiction in relation to the nature of harm to be serious if repeated. The applicant's rehabilitation was tested in the community for long period of time and the offences categorised by the AAT's remarks to be "extremely serious" which the respondent adopted were not repeated by the Applicant. 2. The Decision of the Respondent is affected by Jurisdictional error in that the Respondent committed a jurisdictional error as it had regard to irrelevant matters whilst exercising it's discretion. Risk of Recidivism The Respondent reasoning's at [paragraph 65 of the statement of reasons for cancellation of visa under s. 501(2) of the migration Act 1958] accurately take range of factors in favour of the applicant in these reasoning's the Respondent states "I have had regard to a range of factors set out above that lower the risk of Ms Mckendrick re-offending including her remorse and progress towards her rehabilitation, the support of her family and social networks, as well as her employment since being released into the community. I have also taken into account that Ms Mckendrick has not re-offended since her last convictions in 2014 and since being in the community since November 2014. The respondent further perpetuates this notion that recidivism could not be totally precluded using the language of "rehabilitation was only tested for a limited time" in order to then justify the conclusion that "that there remains an ongoing likelihood of Ms Mckendrick re-offending" without giving enough weight to the applicant's efforts to reform. The Respondent at [paragraph 67 of statement of reasons for cancellation of visa under s. 501(2) of the migration Act 1958] as the Respondent states "In addition, While I am cognisant that Ms Mckendrick has not re-offended since being released into the community in November 2014, I find Ms Mckendrick's history of relapse into illicit drug use gives me cause to be guarded about her capacity to maintain her efforts at rehabilitation. I also note the operational period of Ms Mckendrick's most recent suspended sentence, imposed on 24 October 2014, ended in April 2017. I therefore find the subsequent time Ms Mckendrick has spent in the community without the threat of the invocation of a suspended sentence to constitute a very short time with which to test the durability of her rehabilitation. The Respondent in it's balancing process in relation to the applicant's risk of recidivism is involved in mere speculation rather than making a concrete assessment of the countervailing considerations which leads him to conclude at [paragraph 70 statement of reasons for cancellation of visa under s. 501(2) of the migration Act 1958] "I find there remains an ongoing likelihood of Ms Mckendrick re offending. I find if she was to engage in further criminal conduct of a similar nature, it may result in physical, psychological or financial harm to a member of the Australian community. Failure to properly weigh primary & non primary considerations The Respondent reasoning's at [112] do not accurately address the applicant's best interest of children, ties to Australia, significant difficulties applicant's elderly father would face due to applicant's deportation and the impediments the applicant would face due to being removed from Australia as the Respondent states that primary consideration of the Protection of Australian community outweighed other countervailing considerations in the applicant's case. The issue that arises at [112-114] the Respondent's reasoning indicates that no concrete assessment of countervailing considerations has been undertaken and that the balancing process which the Minister purported to apply required by the Ministerial Direction No. 65 suffers from a defect Unreasonableness It is rare that a Court will find that a decision is illogical or is unreasonable in the "Wednesebury sense", in that no decision-maker should have come to such a conclusion. However, given the multitude of errors outlined above, and the persistence with which all assessments conducted by the Respondent were either flawed or deficient, and the weighing process the Respondent undertook appears to omit the primary considerations or not engage in a concrete assessment of countervailing factors, whilst taking a significantly more serious view of the crime than did the sentencing judge and the AAT, it is possible that a Court will find Wednesebury sense unreasonableness. It became immediately apparent in the course of Ms McKendrick's oral submissions that the essence of her challenge on judicial review to the Minister's decision was a contention that the Minister's decision was, in the jurisdictional error ground sense, unreasonable. 4 Though the informality of articulation of this ground did not escape the attention of the Minister in written submissions, his counsel, Mr McGlade, very fairly approached the case on the basis that Ms McKendrick had come to identify a known ground of jurisdictional error, namely, unreasonableness. It may be that there are other ways of viewing the grounds as informally expressed in the originating application. And if only out of an abundance of caution, I shall make some reference to other ways in which the grounds might be characterised. That is not to say that any such characterisation would lead to any different end in terms of the disposition of the application. 5 Section 501(2) provides that the Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. Also materially, s 501(6) provides that for the purposes of this section a person does not pass the character test if (a) the person has a substantial criminal record (as defined by subs (7)). Regard to s 501(7) discloses that, amongst other things, for the purposes of the character test, a person has a substantial criminal record if, as per s 501(7)(c), the person has been sentenced to a term of imprisonment of 12 months or more. 6 On 24 October 2014, Ms McKendrick was convicted in the Magistrates Court in Queensland of an offence of receiving tainted property. In respect of that offence, she was sentenced to 18 months imprisonment, suspended for 30 months. That same day, she was also convicted but without further punishment of separate offences namely, unlawful use of a motor vehicle, driving without a licence and assaulting or obstructing a police officer. It is the offence of receiving tainted property and its sentence which excited the formation of a reasonable suspicion on the part of the Minister. It was no part of Ms McKendrick's case that this particular precondition for the exercise of the discretion conferred on the Minister was not met. 7 It has been established by prior authority, namely Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113, to which I was helpfully referred by Mr McGlade, that the imposition of a term of imprisonment which is suspended nonetheless constitutes, for the purposes of s 501(7)(c) of the Act, the sentencing of a person to a term of imprisonment. That is so because, necessarily, what is suspended is a term of imprisonment which is then the subject of suspension. It necessarily follows, in Ms McKendrick's case, given the length of the term of imprisonment imposed in the Magistrate's Court, that the basis for the formation of a reasonable suspicion on the part of the Minister was met. 8 In Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at [40] to [41], Sir Anthony Mason observed: The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned. It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". This ground of review was considered by Lord Greene Master of the Rolls in Wednesbury Corporation in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. And then a little later, at 41: However, in its application, there has been considerable diversity in the readiness with which courts have found the test to be satisfied. [particular case references cited in this passage omitted] 9 Much ink has since been spilt in our courts in relation to the unreasonableness ground of review. Subject to one particular later case in the High Court, it may, in my respectful view, be doubted whether anything much has been added to the observations made by Sir Anthony in Peko-Wallsend in relation to the unreasonableness ground of review. Indeed, it may be that there has been some absence of appreciation that unreasonable has, as a ground of a review, as Sir Anthony Mason highlighted, been the subject of considerable diversity of application with particular outcomes being nothing more than the application of a settled principle on particular facts, rather than any particular aberration of principle. 10 However that may be, reference must now necessarily be made to Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. There is discernible, in that case, a diversity of judicial opinion in relation to the content of the unreasonableness ground of review. The view, though, which commanded a majority in the High Court and which binds me necessarily, is that the limits of that particular ground of review are not fixed by the statements made by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223. In that case, at [68], Hayne, Kiefel and Bell JJ stated: The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational if not bizarre decision, which is to say one that is so unreasonable that no reasonable person could have arrived at it. 11 As I observed in Vili v Assistant Minister for Immigration and Border Protection (2017) FCA 1556 at [9]: Quite what the metes and bounds of that arguable departure from a narrower view of unreasonableness may be is moot. The learned authorities of Aronson & Ors, Judicial Review of Administrative Action, opine of it at paragraph 6.390 that, "The genie may now be out of the bottle." 12 If only for completeness, reference ought also to be made to an endeavour in the Full Court in Minister for Immigration and Border Protection v SZVFW (2017) 248 FCR 1 at [38] to distil from prior authority certain general principles in relation to the jurisdictional error ground of unreasonableness: 38. The following general principles may be extracted from the three leading authorities referred to immediately above (further general guidance is provided by the Full Court's decision in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158): • there is a legal presumption that a statutory discretionary power must be exercised reasonably in the legal sense of that word (Li at [63] per Hayne, Kiefel and Bell JJ; Singh at [43] per Allsop CJ, Robertson and Mortimer JJ; Stretton at [4] per Allsop CJ and at [53] Griffiths J); • nevertheless, there is an area within which a decision-maker has a genuinely free discretion, which area is bounded by the standard of legal reasonableness (Li at [66]; Stretton at [56] per Griffiths J); • the standard of reasonableness does not involve a court substituting its view as to how a discretion should be exercised for that of a decision-maker (Li at [66]; Stretton at [8] per Allsop CJ and [76] per Griffiths J); • the legal standard of reasonableness is not limited to what is in effect an irrational, if not bizarre, decision and an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified (Li at [68]); • in determining whether a particular case a statutory discretion has been exercised unreasonably in the legal sense, close attention must be given to the scope and purpose of the statutory provision which confers the discretion and other related provisions (Li at [74]; Stretton at [62] and [70] per Griffiths J); • legal unreasonableness "is invariably fact dependent" and requires a careful evaluation of the evidence. The outcome of any particular case raising unreasonableness will depend upon an application of the relevant principles to the relevant circumstances, rather than by way of an analysis of factual similarities or differences between individual cases (Singh at [48]; Stretton at [10] per Allsop CJ and at [61] per Griffiths J); • the concept of legal unreasonableness can be "outcome focussed", such as where there is no evident and intelligible justification for a decision or, alternatively, it can reflect the characterisation of an underlying jurisdictional error (Singh at [44]; Stretton at [12]-[13] per Allsop CJ); • where reasons are provided, they will be the focal point for an assessment as to whether the decision is unreasonable in the legal sense and it would be a rare case to find that the exercise of a discretionary power is legally unreasonable where the reasons demonstrated a justification (Singh at [45]-[47]). 13 Ms McKendrick's development of her asserted jurisdictional error ground of unreasonableness took up sentiments voiced by Sir Anthony Mason in the passage quoted from Peko-Wallsend. By that I mean that she acknowledged that particular factors relevant to her circumstances had been considered by the Minister but submitted that these were factors of great importance to which particular weight ought to have been given but was not given. 14 In developing this submission and having regard to the judgment delivered by Sir Anthony Mason in Peko-Wallsend, Ms McKendrick did not put any aberration of principle, rather, she sought to have vindicated that most difficult of arguments in relation to unreasonableness, which is that when one looks at a particular outcome having regard to the circumstances of a particular case, it becomes apparent that the outcome is the result of relevant factors of great importance not having been given the weight they deserve. 15 The borderline between such an argument and a solicitation impermissibly to conduct merits review can sometimes be more apparent in hindsight than in prospect, but there is a very real borderline nonetheless. By that I mean that it is not permissible, acting judicially, to transgress into an area which is reserved for the considered value judgment of an administrator, in this case the Minister. Within the limits of legality, Ministers of State are answerable not to the judicial branch of government, but to the Parliament, in other words, the legislative branch, and to a wider court of public opinion. In the exercise of this particular statutory power, that can make ministerial office a lonely and difficult one, but as Sir Anthony Mason observed in Peko-Wallsend, the limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. 16 The Minister furnished reasons for his decision. They are, with respect, meticulous in the insight they offer in respect of the consideration of Ms McKendrick's circumstances. Ms McKendrick has a lengthy criminal record, putting aside matters which came before the Queensland Childrens Court in 1999. That record commences as the Minister's reasons reveal, in 2002 when she was convicted of a number of offences relating to the operation of a motor vehicle, namely, unlawful use of a motor vehicle, dangerous operation of a vehicle, and dangerous operation of a vehicle whilst adversely affected. Like offences are discernible in 2005. 17 The detail of these are related in the Minister's reasons. It is not necessary for present purposes to set out that detail other than to note that one of the 2005 offences entailed a driving offence committed in circumstances where Ms McKendrick drove a motor vehicle in excess of 100 kilometres per hour, in a residential area, whilst affected by methamphetamines. In 2008, she was convicted of property offences dealing with property valued at over $57,000. Sentences of up to three years were imposed to be served concurrently with other lesser sentences. Further offences were later committed by her which involved dealing with property valued at $24,000. In respect of these, she was both fined and sentenced to imprisonment for up to two years and 10 months. At the time of sentencing, the judge concerned referred to these not just as serious, but as ones which involved a terrible violation of people's homes. 18 This latter course of offending conduct led to an earlier encounter by Ms McKendrick with the ability for a non-citizen to have a visa cancelled on character grounds. The particular cancellation decision in that case was one amenable to review on the merits by the Administrative Appeals Tribunal (the Tribunal). I should add that the present decision, being one made by the Minister personally, was not amenable to review on the merits by the Tribunal. Ms McKendrick had the benefit of a decision by the Tribunal which overturned the cancellation decision. 19 In 2014, Ms McKendrick was again convicted of a property offence and given a suspended sentence. In 2017 she was convicted in respect of the offence earlier mentioned, namely, receiving tainted property for which she received a sentence of 18 months imprisonment, suspended for 30 months. 20 That course of offending conduct is one part of the background circumstances. There are others. Those others are set out in detail in the Minister's reasons under the headings "Mitigation", "Rehabilitation", "Remorse", "Conduct in Prison and Immigration Detention", "Family and Social Support", "Best Interests of Minor Children", "Ties to Australia" and "Extent of Impediments if Removed". 21 It is quite apparent from the Minister's reasons that what one might term the 'intergenerational' impact of Ms McKendrick's removal from Australia was expressly considered. There is a very great deal in the recitation of Ms McKendrick's circumstances which can only excite sympathy. 22 The Minister, apart from addressing the matters mentioned, expressly considered the subject of risk to the Australian community. 23 As the Full Court acknowledged in AZAFQ v The Minister for Immigration and Border Protection [2016] FCAFC 105, there has been a diversity of opinion in the Full Court as to whether the risk of re-offending constitutes a mandatory relevant consideration in decisions made under s 501(2), and, if so, whether it is necessary to quantify that risk. 24 Very recently in Falzon v Minister for Immigration and Border Protection [2018] HCA 2, the High Court identified in s 501 of the Act, a protective purpose. That persuaded me in Ogawa v Minister for Immigration and Border Protection [2018] FCA 62 to express a preference for that line of authority in the Full Court which favoured the view that the risk of re-offending was a mandatory relevant consideration. 25 There is an academic quality about whether or not that is indeed a mandatory consideration as the Minister in the circumstances at this case chose to have regard to risk, as he undoubtedly was at least permissibly able to do. 26 The Minister formed the view that Ms McKendrick did present a risk of re-offending. Further, he stated at para 111: I find that the Australian community could be exposed to significant harm should Ms McKendrick re-offend in a similar fashion. I could not rule out the possibility of further offending by Ms McKendrick. The Australian community should not tolerate any further risk of harm. 27 The foundation for that particular assessment of risk was undoubtedly present in this case. The Minister's reasons, having regard to an earlier pattern of offending conduct, disclosed not just a logical and rational foundation for his assessment of risk, but in the public law sense, a reasonable foundation for that assessment. The Minister acknowledged, at para 112, that there were countervailing considerations, including the best interests of the affected minor children, including Ms McKendrick's Australian citizen child, Sasha, and other extended family member minors, as well as other family members. Included in his consideration as to hardship to be endured by her family were her parents, and even more especially, health issues relating to her father and elderly mother. 28 In the end, as disclosed in paras 112, 113 and 114 of his reasons, the Minister came to that most awful of evaluative decisions which from time to time fall to be made by those whom our Constitution terms the Queen's Ministers of State for the Commonwealth. What he did was to make a considered value judgment weighing up considerations that, as I have observed, can only excite sympathy with other considerations related to risk. It would, in my view, transgress the limited role of the judiciary, even allowing for Sir Anthony Mason's observation in Peko-Wallsend that unreasonableness can be found in not giving sufficient weight to a relevant factor of great importance, to hold that the Minister's decision is unreasonable. 29 As I have observed, this is one of those awful, hard decisions which sometimes come to be made in the reasonable exercise of a ministerial discretion. To do otherwise than acknowledge that would, in my view, be to transgress the role that I have as a judge and substitute for the Minister's decision my own subjective decision. It needs to be remembered, in evaluating the Minister's decision and his reasons disclose that this was influential, that Ms McKendrick had something of a "near deportation experience" and received the benefit of a benign decision by the Tribunal but later, nonetheless, reoffended in a way which created a fresh opportunity for consideration of whether her visa should be cancelled. Of course she has had many years of blameless conduct but the overall evaluation, as a sequel to offences which again enlivened a discretion as to whether to cancel, was one for the Minister to make on the merits. 30 It was put that one way of reading the grounds of review is that there had been a failure to take into account Ms McKendrick's rehabilitation. That is not expressly a relevant consideration, although the personal circumstances of a visa holder might be regarded, as a general statement, as relevant. However this may be, the subject of Ms McKendrick's rehabilitation is extensively canvassed and discussed in the Minister's reasons in relation to a risk of recidivism. 31 It might also be thought that the grounds of review, as expressed in the originating application, raise a question as to whether an irrelevant consideration has been taken into account. The limits as to what is or is not relevant in relation to a cancellation decision under s 501(2) are not easily discernible. Risk, as I have said, is relevant, in my view. So too are the personal circumstances of a visa applicant. But beyond that, what is or isn't relevant is limited only by the protective purpose of the statute. In any event, the Minister has permissibly had regard to numerous medical and parole board reports in respect of Ms McKendrick, including those relating to questions of rehabilitation and remorse. 32 For those reasons, the application must be dismissed. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.