Minister for Immigration and Border Protection v Stretton

9 CLR 449 Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492

National Practice Area: Administrative and Constitutional Law and Human Rights

Counsel for the Appellant: Ms K Stern SC with Ms A Wheatley

Solicitor for the Respondent: Bosscher Lawyers Commercial

BETWEEN: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Appellant

AND: KEITH ANTONY STRETTON Respondent

JUDGES: ALLSOP CJ, GRIFFITHS AND WIGNEY JJ DATE OF ORDER: 15 FEBRUARY 2016

1. The appeal be allowed.
2. The orders of the Federal Court of Australia of 5 June 2015 be set aside and in lieu thereof order that: (a) the respondent's further amended application to the Federal Court of Australia dated 25 May 2015 be dismissed; and (b) the respondent pay the appellant's costs of the Federal Court proceeding QUD640/2014.
3. The notice of contention be dismissed.
4. The interlocutory application filed on 17 July 2015 seeking leave to adduce fresh evidence be dismissed.
5. The respondent pay the appellant's costs of the proceeding as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ALLSOP CJ: 1 I have read the reasons to be published of Griffiths J. I agree with the orders proposed by his Honour. Subject to the following, by way of elaboration, I agree with his Honour's reasons. I have also read and agree with the reasons to be published of Wigney J. 2 The proper elucidation and explanation of the concepts of jurisdictional error and legal unreasonableness does not depend on definitional formulae or on one verbal description rather than another. Both concepts concern the lawful exercise of power. For that reason alone, any attempt to be comprehensive or exhaustive in defining when a decision will be sufficiently defective as to be legally unreasonable and display jurisdictional error is likely to be productive of complexity and confusion. One aspect of any such attempt can be seen in the over-categorisation of more general concepts and over-emphasis on the particular language of judicial expression of principle. Thus, it is unhelpful to approach the task by seeking to draw categorised differences between words and phrases such as arbitrary, capricious, illogical, irrational, unjust, and lacking evident or intelligent justification, as if each contained a definable body of meaning separate from the other. 3 These words and phrases express a rule that is directed to the limits of the exercise of power, and, because of that function, are necessarily expressed as abstractions applying to the infinite variety of decision-making under variously expressed statutory provisions, in a wide variety of legal contexts. 4 In Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, the High Court made clear that legal reasonableness or an absence of legal unreasonableness was an essential element in the lawfulness of decision-making; Parliament is taken to intend that statutory power will be exercised reasonably: see Li at [26] and [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J). 5 These statements of general principle in the three judgments (French CJ, and Hayne, Kiefel and Bell JJ, and Gageler J) variously drew upon and drew together a number of well-known expressions and bodies of principle including, and without repeating all citations: the Constitutional necessity for legal control of discretion (power): Shrimpton v The Commonwealth [1945] HCA 4; 69 CLR 613 at 629-630; the necessary confinement, explicit or implicit, of any statutory discretion or power by the subject matter, scope and purpose of the legislation: Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492 at 505; the implied legislative intention to condition statutory discretionary power by a requirement that it be exercised reasonably: Kruger v The Commonwealth [1997] HCA 27; 190 CLR 1 at 36; Abebe v The Commonwealth [1999] HCA 14; 197 CLR 510 at 554 [116]; Shrimpton at 620; South Australian Commissioner for Prices and Consumer Affairs v Charles Moore (Aust) Limited [1977] HCA 38; 139 CLR 449 at 466; and Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24 at 41-42; the necessity that a discretion be exercised according to the rules of reason and justice, not private opinion, according to law, and not humour, and within the limits that an honest and competent person would confine herself that is "legal and regular, not arbitrary, vague and fanciful": Sharp v Wakefield [1891] AC 173 at 179; Shrimpton at 620; R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; 113 CLR 177 at 189; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 62 [9]; the illegitimacy of the exercise of a discretion in reaching a conclusion that no reasonable person could ever come to: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229, or where no sensible decision-maker acting with due appreciation of his or her responsibilities would so decide: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064; the requirement that the satisfaction or opinion of a decision-maker about the existence of a matter, in particular a jurisdictional fact, be reasonably formed: Council of the Municipality of Bankstown v Fripp [1919] HCA 41; 26 CLR 385 at 403; R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 430; Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-119, (though not referred to in Li, Starke J in Boucaut Bay Company Limited (in liq) v The Commonwealth [1927] HCA 59; 40 CLR 98 at 101, approved by Windeyer J in Commissioner of Taxation of the Commonwealth of Australia v Brian Hatch Timber Co (Sales) Pty Ltd [1972] HCA 73; 128 CLR 28 at 57, said that reasonableness here meant not dishonestly, capriciously or arbitrarily and upon a rational ground for the belief); the settled principles of appellate review of judicial discretion in House v The King [1936] HCA 40; 55 CLR 499, and the guidance found therein in the analogy with judicial review of administrative action: Minister for Aboriginal Affairs v Peko-Wallsend Limited 162 CLR at 42; the principle that it is open to infer legal error if the result of the decision appears unreasonable assuming the correct question was addressed and the law was followed in the making of the decision: Avon Downs Proprietary Limited v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360; the principle concerned with unreasonableness in the exercise of delegated law-making power - if such laws were partial and unequal or manifestly unjust, or by operation they involved oppressive or gratuitous interference with rights that could not be reasonably justified: Kruse v Johnson [1898] 2 QB 91 at 99-100; and the fact that the conditioning of a power to be exercised reasonably has an analogy with the conditioning of the power with the obligation to afford procedural fairness: Gageler J in Li at [92]. 6 Each of the judgments in Li sought to give explanatory content to the concept of legal unreasonableness. As was discussed in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437, the judgments in Li identified two different contexts in which the concept of legal unreasonableness was employed: a conclusion after the identification of jurisdictional error for a recognised species of error, and an "outcome-focused" conclusion without any specific jurisdictional error being identified: Singh at [44]. 7 It is in relation to the second context, the "outcome-focused" application of the concept, that precise definition, beyond explanation of the operative notion and of the legal technique by which to make the assessment, becomes productive of complexity and confusion. There is "an area of decisional freedom" of the decision-maker, within which minds might differ. The width and boundaries of that freedom are framed by the nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law, in particular, of reasonableness. The boundaries can be expressed by the descriptions and explanatory phrases of the kind set out in [5] above. 8 The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court's function is a supervisory one as to legality: see Li at [30], [66] and [105]. 9 The conclusion that a decision is legally unreasonable by reference to the outcome, whether or not there are reasons therefor, is assisted by reference to expressions taken from cases such as those mentioned in [5] above. Any criticism that these explanations are circular and vague is to be met by attending to the terms, scope and policy of the statute and the values drawn from the statute and the common law that fall to be considered in assessing the decision. The terms, scope and policy of the statute and the fundamental values that attend the proper exercise of power - a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual - will inform the conclusion, necessarily to a degree evaluative, as to whether the decision bespeaks an exercise of power beyond its source. 10 This concept of legal unreasonableness is not amenable to minute and rigidly-defined categorisation or a precise textual formulary. For instance, in argument, the submission was put that [76] of Li in the judgment of Hayne, Kiefel and Bell JJ contained two (different) "tests": (1) if upon the facts the result is unreasonable or plainly unjust and (2) if the decision lacks an evident and intelligible justification. The submission reflected the dangers of overly emphasising the words of judicial decisions concerning the nature of abuse of power, and of unnecessary and inappropriate categorisation. The plurality's discussion of unreasonableness at [63]-[76] in Li should be read as a whole - as a discussion of the sources and lineage of the concept: [64]-[65], of the limits of the concept of reasonableness given the supervisory role of the courts: [66], of the fundamental necessity to look to the scope and purpose of the statute conferring the power to find its limits: [67], of the various ways the concept has been described: [68]-[71], of the relationship between unreasonableness derived from specific error and unreasonableness from illogical or irrational reasoning: [72], of the place of proportionality or disproportion in the evaluation: [73]-[74] (as to which see also French CJ at [30] and see also McCloy v New South Wales [2015] HCA 34; 325 ALR 15 at [3] (French CJ, Kiefel, Bell and Keane JJ)), of the guidance capable of being obtained from recognising the close analogy between judicial review of administrative action and appellate review of judicial discretion: [75]-[76]. 11 The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power. 12 Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised. 13 The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power. 14 Before saying something as to the primary judge's approach here, some salient features that attend this decision should be stated, with the clarity they demand. Mr Stretton, when aged 54 years, sexually abused his eight or nine year old granddaughter while she was under his care on three occasions by touching and rubbing her vagina underneath her underpants directly on her skin to a degree and extent to make the child feel sore. The crimes were committed when Mr Stretton was affected by alcohol. A psychologist, whose report was before the Minister, described his pattern of alcohol use as "unwise" and one that had developed after a childhood marked by physical and mental abuse. These essential facts should not be lost sight of in assessing the harshness of the consequences that might flow from, ultimately, what were Mr Stretton's own actions. 15 The crimes for which Mr Stretton was convicted and sentenced saw the engagement of the power in s 501 of the Migration Act 1958 (Cth) to remove Mr Stretton as a non-citizen from Australia. The exercise of that power in relation to a non-citizen who has been in this country for many years, with strong and deep social, family and human roots here is bound to be complex and difficult. There can be no doubt that one aspect of the scope and purpose of s 501 is the protection of the Australian community, including here vulnerable young children. The decision to remove Mr Stretton from Australia will cause hardship to him, and his family, in particular the breaking of family relationships of many years; further, the removal of someone from Australia who has spent much of his life here (arriving as a child of six years) itself has a quality of harshness that might, in other statutory contexts, together with the effect on him and his family, bespeak unjustness, arbitrariness or disproportion of response. Whilst not a citizen of Australia, Mr Stretton has lived here since he was a small boy. His human frailties are of someone who has lived his life here, as part of the Australian community. 16 The statutory context is, however, important. The purposes of the provision (s 501) include the protection of the Australian community. (There is no call to examine what may be other purposes of the provision.) That protection may come at the cost of hardship. The Minister accepted that the risk of Mr Stretton re-offending was low, but recognised that should re-offending occur the harm could be serious to the community, more particularly (implicitly) to one or more young, vulnerable members of the community. 17 It may be that others exercising this governmental power on behalf of the Australian people would have been prepared, on the community's behalf, to take the low risk of the possibility of his re-offending to avoid the harshness inflicted by the removal. That can be accepted. But that is not sufficient for the decision to be characterised as legally unreasonable - as a decision that is of a character not supported by its apparent statutory source. The decision to be made under s 501 called for an evaluative balancing of unquantifiable (though low) risk, possibly serious harm to a person or persons unknown if re-offending occurred, and known immediate human hardship if removal takes place. The decision to be made did not admit of a ready answer by some calculus. The decision as made was one that can be seen to have been reached by reasoning which was intelligible and directed towards, and related intelligibly to, the purposes of the power. It was one that, though having harsh consequences for Mr Stretton and his family, can be seen to be reasonably within the purview of the provision. 18 The primary judge's reasons for concluding that the Minister's reasons were legally unreasonable are found at [57]-[61], and in particular at [58]-[60]. 19 In [57] of his reasons, the primary judge described the offences as at the lower end of the range of depravity that paedophilia can entail and that this was reflected in the sentencing judge's remarks. The primary judge said (at [57]) that the Minister was not given the benefit of any such assessment by his department in the Issues Paper. But the Minister had the sentencing remarks in which the sentencing judge was comparing the offences with digital rape or digital penetration, and cunnilingus. The Minister said he read those remarks. There is no basis to conclude that the Minister misapprehended the nature of the offending in any way. 20 The primary judge's reasoning at [58]-[60] was as follows: 58 Had the Minister chosen to act on his evaluation of the risk presented by Mr Stretton as "low", tempered by an understanding of the objective seriousness of the offences concerned, he would then have had to confront and balance the countervailing factors (termed "discretionary considerations" by Kirby J in Re Patterson) which he noted. By the time when Mr Stretton came to commit these offences, he had been resident in Australia for nearly half a century, more than that by the time when the Minister made his decision. He came here as an infant. He had no ties with the United Kingdom, other than the circumstance of his birth. He had not even returned there to visit, much less did he have any adult experience whatsoever of living and working there. 59 Mrs Stretton likewise had no ties with the United Kingdom other than a circumstance of birth. Notwithstanding his offending conduct, Mr Stretton was not estranged from his wife of some 40 years. Nor was he estranged from any of his children save, for the most understandable of reasons, from the mother of the grandchild he molested. Nor was he estranged from his aged and ailing, Australian citizen father. Mr Stretton had had a troubled youth, in Australia, but a feature of his adulthood in Australia after he met his wife and until 2009 was a blameless life, sustained work and deep community and family involvement. By the time the Minister made his decision, Mr Stretton was ten months into the two year period of the suspension of the balance of his sentence, with not a hint of recidivism. There was no need to deport Mr Stretton in order to protect the victim or her siblings, for, though they lived in Australia, her and her mother remained estranged from him, as were that daughter's other children (his only other grandchildren). The risk of harm to others was low. To cancel Mr Stretton's visa would cast him adrift in his advancing years in a foreign land and remove him from the regular society of those of his children, each Australian citizens, who wished to continue association with him, not to mention the society of his own father. It would also present his blameless wife, likewise long a stranger to the United Kingdom and equally long a resident of Australia, with an agonising dilemma. On the one hand, she could stand by her husband abroad, not just with like hardships to her husband but with a hardship that extended also to losing regular society with the daughter and grandchildren who were estranged from Mr Stretton, not her; on the other hand, she could remain here and cast adrift a life partner, already assessed as having a risk of suicide. 60 The Minister's decision was not bizarre. It was never part of Mr Stretton's case that his decision was dishonest and, in any event, there is not a scintilla of evidence which would show that. The exercise of the discretion was though, with respect to the Minister and when all of the matters referred to in the preceding paragraph are considered objectively, unreasonable in the sense referred to by the majority in Li. Another way of describing the nature of the error, also found in Li, is to adopt a pithy turn of phrase used by Mr G Airo-Farulla: "Reasonableness, rationality and proportionality", in Groves M and Lee HP, Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007) pp 212 and 215, which commended itself, at [30], to French CJ. The Minister has, with respect, "[taken] a sledgehammer to crack a nut". His exercise of the discretion conferred on him was, in the circumstances, in excess of what, on any view, was necessary for the purpose it served. 21 The difficulty with the reasoning is that it is expressed as the primary judge's view as to what was reasonable. He, himself, makes an evaluation of what is necessary for the protection of the Australian community, principally, if not wholly, however, by reference to the young children in Mr Stretton's immediate family. It would seem that this approach was brought about by a view of the need for the assessment to be objectively unreasonable. This does not carry with it the authority for the Court to reach its own view of what is reasonable or not, or what is necessary, and then, without more, to supplant the view of the Minister. It is not a correct approach for the Court on judicial review to assess the lawfulness of the decision under s 501 by asking whether the exercise of discretion was necessary for the purpose. That an assessment whether the decision-maker's conclusion was legally unreasonable may involve some consideration of disproportionality does not authorise the Court to decide for itself what is necessary for the relevant purpose and to declare a decision beyond that assessment as unreasonable. The correct question, or perspective, if one is looking at the outcome in question, is not whether the Court thinks the decision is reasonable, or necessary for the purpose, or not, as the case may be; rather it is whether a decision-maker could reasonably come to the conclusion. Depending upon the nature of the decision, its attendant considerations and the statute in question, the Court may or may not have a degree of familiarity and confidence in assessing how a decision-maker ought to approach the matter. The decision and statutory context in Li was an example of this. Here, the decision was not a procedural decision; it was a substantive one concerned with an evaluation of the protection of the Australian community by a Minister of the Crown, personally. 22 The task of the Court was to assess whether the decision of the Minister should be characterised as one which was not a reasonable and rational exercise of a power made in furtherance of the protection of the Australian community. The choice before the Minister was to leave Mr Stretton in the Australian community or remove him from it. The former would run a low risk of significant harm to one or more young vulnerable children (I see no necessary limitation of such to a class being Mr Stretton's immediate family); the latter would cause Mr Stretton and his family great hardship. Whilst this was a difficult decision it was one about which minds could differ, and I do not see how the latter could be seen as "in excess of what, on any view, was necessary for the purpose it served" (even if that was a relevant question) as the primary judge said in [60]. The low risk of re-offending was, having regard to what happened, of behaviour that was uncontrolled and contributed to by alcohol. In circumstances where the risk of such re-offending could not be eliminated it is difficult to conclude that such risk (though low) was necessarily acceptable because of the hardship that removal would cause to him and his family. 23 The decision of the Minister was an evaluative one that necessarily, to a degree, involved the application of some policy to the circumstances of a particular case in which the primary consideration for the Minister was the question of risk of harm (albeit low) to the Australian community. A decision was made that some may characterise as hard, given Mr Stretton's long connection with Australia, his deep remorse and his family circumstances. The decision was, however, defensible as a rational exercise of power, given the nature of the offending and a risk of re-offending, and the protective scope and purpose of the provision. 24 If I be wrong in my characterisation of the approach of the primary judge and if his Honour is to be taken as having approached the matter by assessing whether the Minister's decision was capable of being seen as an exercise of power under s 501 (and the last paragraph of the primary judge's reasons may give some support to that view), the primary judge's assessment and conclusion cannot, in my view, for the reasons in the judgments of Griffiths J and Wigney J, and for the reasons above, be accepted. 25 If this be the correct appreciation of the primary judge's reasons, a question might arise (no substantive argument was put to the Court) as to the proper approach to the appeal. Though the task of assessing legal unreasonableness is partly an evaluative process, it is one rooted in the legal source of the power and the values and considerations drawn from the statute and the common law. There would be in such circumstances no call to treat such evaluation as akin to a discretion such that its review would be concluded by reference to House v The King. The power was either lawfully exercised by the executive or not. While judicial decision about that question might be contestable, there can only, legally, be one correct answer: cf Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at 436 [25]. The proper framework of the appeal is not as the review of the exercise of a judicial discretion or of an evaluative judgment of like character. 26 Whilst not the focus of any argument, it is to be doubted that the judicial review of decisions such as this is affected or impeded by the use by the Minister in his reasons of phrases such as "the privilege of being able to remain in Australia". At one level such an expression can be seen as an unremarkable synonymous phrase for the statutory rights held under the Migration Act. To the extent, however, that the use of that language seeks to surround, or has the apparent effect of surrounding, the decision with an aura of a non-justiciable assessment of community values, I would not necessarily accept such. It is unnecessary for the resolution of this appeal to explore the full fabric of the scope and purposes of s 501 beyond the protection of the Australian community. In particular, there is no call to consider the relevance of what might be called broader political or policy considerations (whether expressed as such, or expressed as a judgment as to the expectations of the Australian community) in the exercise of the power. 27 Nothing in these reasons should be taken to have been directed to the exercise of power under the prerogative or s 61 of the Constitution otherwise unsupported by statute. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.

GRIFFITHS J: 28 This appeal raises important issues concerning the nature and scope of the judicial review ground of legal unreasonableness. The Minister appeals against a decision of the primary judge who, on a judicial review, held that the Minister had fallen into jurisdictional error in cancelling the respondent's visa. The primary judge found that the Minister's decision to cancel the visa was "unreasonable" in the sense in which that ground of review was described in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li). 29 In my respectful opinion, the primary judge misapplied the legal principles relating to this ground of judicial review. 30 The respondent (Mr Stretton) has filed a notice of contention which, for reasons I give below, should be dismissed.

Summary of background facts 31 Mr Stretton was born in England on 29 December 1954. He moved to Australia with his father and brother in 1961. During the period 1970 to 1974 he was found guilty of several relatively minor offences. In September 1975, he married his current wife, who is also English. Neither Mr Stretton nor his wife are Australian citizens. They have four children. In 2009 (and not having been convicted of any criminal offences after 1974), Mr Stretton committed sexual offences in relation to his granddaughter, who was then 8 or 9 years old and who was under his care when the offences occurred. On 24 June 2013, Mr Stretton was convicted in the District Court of Queensland of the offence of indecent treatment of a child under 12 years of lineal descendant (three counts). He was imprisoned for two years, to be released after serving six months imprisonment upon entering into a two year good behaviour bond. Mr Stretton was released from prison on 23 December 2013. 32 On 16 October 2013 (i.e. while Mr Stretton was still in prison), he was given notice by the Minister's Department of an intention to consider cancelling his Class BB, Subclass 155 (Five Year) Resident Return visa (the visa) under s 501(2) of the Migration Act 1958 (Cth) (the Migration Act). He was provided with various information which might be relied upon in deciding whether his visa should be cancelled. He was invited to comment within 28 days. On 14 November 2013, Mr Stretton was granted an extension of time until 6 December 2013 to respond to the notice. Mr Stretton was subsequently informed by a Departmental letter dated 18 November 2013 that consideration would also be given to the transcript of the proceedings in the District Court when he was sentenced. He was provided with a copy of the transcript and invited to comment on that material as well. 33 By a letter dated 6 December 2013 which was written by his solicitor, Mr Stretton provided a detailed written submission and other supporting material against his visa being cancelled. The material included statutory declarations by various people, including Mr Stretton, his wife and some of his children, including his youngest daughter. The material also included various medical reports, including a forensic psychologist's assessment of Mr Stretton. There was also a brief report by a General Practitioner who certified that, because Mr Stretton's youngest daughter was suffering from depression, it would be detrimental to her emotional and psychological health if her father was returned to England. 34 The Minister was provided by his Department with a detailed brief concerning the possible cancellation of Mr Stretton's visa. The brief is undated but bears a date stamp of having been received by the Minister on 26 June 2014. The brief contained a detailed analysis by the Department of Mr Stretton's case. Various factors pointing for and against cancellation of Mr Stretton's visa were analysed. The brief included copies of all the material sent to the Department on behalf of Mr Stretton in support of his contention that his visa not be cancelled. 35 On 28 October 2014, the then Minister personally determined to cancel Mr Stretton's visa under s 501(2) of the Migration Act. The Minister provided a detailed statement of reasons in respect of his decision. It is desirable to summarise that statement of reasons.

Summary of Minister's statement of reasons 36 In his statement of reasons, the Minister said that he had considered all relevant matters including an assessment against the character test as defined by s 501(6) of the Migration Act and all other evidence available to him, including evidence provided by, or on behalf, of Mr Stretton. 37 Having determined that Mr Stretton did not pass the character test, the Minister stated that he had assessed the information set out in the Department's brief together with its attachments. He said that in considering whether to exercise his discretion to cancel Mr Stretton's visa he was "mindful of the Government's commitment to using section 501 of the Act to protect the Australian community from harm that may result from criminal activity or other serious conduct by non-citizens." The Minister said that he had assessed the seriousness of Mr Stretton's offences and the circumstances in which they had occurred, as well as the sentencing Judge's remarks. 38 The Minister's statement of reasons also contained material and analysis of various mitigating factors which were personal to Mr Stretton, as well as an assessment of the risk of him re-offending. The Minister observed that even if Mr Stretton posed a low risk of re-offending, "serious harm could result to a member of the Australian community if he were to do so". The Minister also considered the nature and extent of Mr Stretton's ties to Australia, which he described as "long and deep". Consideration was also given to various other relevant factors, including the best interests of Mr Stretton's four grandchildren, who were all Australian citizens and residents in Australia. Consideration was then given to a range of other considerations which had been raised by Mr Stretton's solicitor, including the substantial hardship that would be suffered by Mr Stretton's family if he were to be returned to England, fragmentation of relationships, the impact upon Australian business interests if he were to be removed from Australia and impediments which he might face on return to the United Kingdom. 39 Paragraphs 50-55 of the statement of reasons set out the Minister's conclusions and why he decided to cancel Mr Stretton's visa: 50. I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act 1958, and (2) all other evidence available to me, including evidence provided by, or on behalf of Mr STRETTON. 51. In reaching my decision I concluded that Mr STRETTON, a non-citizen, is expected to forfeit the privilege of being able to remain in Australia given the serious nature of his criminal offending. I find that Mr STRETTON's crime against his minor granddaughter, a vulnerable member of the community, is contrary to values held by Australian society. 52. I also considered the countervailing considerations of Mr STRETTON's case including his long and deep ties to Australia, especially to his immediate family members who are either Australian citizens or long term permanent residents of Australia. I gave weight to the consideration that higher tolerance should be accorded to him given that Mr STRETTON spent all of his formative years in Australia arriving as a young child of six, has lived here for 52 years, and was aged about 54 and had lived in Australia for some 48 years when he committed the sex offences. 53. I also gave weight to the substantial hardship his family will suffer, to the impediments he will face on return to the United Kingdom, and to the potential that the strong family relationships he has formed in Australia will be fragmented as a result of his removal from Australia, as well as to the positive contributions he has made to the community through a lengthy period of employment, sporting and community activities. 54. However, in making my decision, I have taken the view that despite the strong countervailing considerations articulated above, they are not sufficient to justify not to cancel Mr STRETTON's visa, since even a low risk of re-offending could result in serious harm to a member of the Australian community. 55. Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Mr STRETTON's Class BB, Subclass 155 (Five Year Resident Return) visa under subsection 501(2). 40 Mr Stretton was taken into immigration detention shortly after the Minister decided to cancel his visa. On 11 March 2015, the primary judge made interlocutory orders which had the effect of restraining the Minister from removing Mr Stretton from the Villawood Immigration Detention Centre in Sydney, other than for the purpose of him attending the hearing of his judicial review application.

Summary of the judicial review application and the primary judge's reasons for judgment 41 The primary judge described Mr Stretton's further amended originating application as raising grounds of review which were "prolix". Those grounds were as follows: 1. The Respondent's decision was infected with jurisdictional error. Particulars (a) The Applicant claimed/contended that the Respondent should not cancel his visa because of the adverse impact and effect that such a cancellation would have on his youngest child, [the victim]. The Applicant put significant evidence before the Respondent which supported such a claim/contention and which demonstrated that there would be a significant adverse impact and effect on [the victim] in the event that the Applicant's visa was cancelled. (b) Notwithstanding the matters outlined in particular (a) above, the Respondent: (i) failed to consider, engage with, address or respond to the applicant's abovementioned claim/contention or the abovementioned evidence; and (ii) failed to take into account a relevant consideration. (c) The abovementioned failures resulted in the Respondent falling into jurisdictional error - including by denying the applicant natural justice. 2. The Respondent's decision was infected with jurisdictional error. Particulars (a) In relation to the Applicant's sentence the sentencing judge (Judge McGinness DCJ) said (with respect to the impact of the Applicant's conduct on the victim and the victim's family) "Although no victim impact statement has been provided, no doubt there have been adverse impacts upon the [victim] and her family". (b) Notwithstanding the matters outlined in particular (a) above, the Respondent found or concluded that the sentencing judge "[noted] the adverse impacts the offences have had upon the child and her family" [emphasis added in original]. (c) The findings/conclusions outlined in particular (b) above arose due to the provision of incorrect information contained in the departmental issues paper that was provided to the Respondent. (d) In the premises of the abovementioned matters the Respondent fell into jurisdictional error by: (i) reaching a conclusion, making a finding and/or having regard to matters for which there was no evidence to support; (ii) misunderstanding the evidence before him; (iii) not properly considering or engaging with the evidence before him; (iv) taking into account an irrelevant consideration or, alternatively, failing to take into account a relevant consideration; (v) making a decision which was unreasonable, illogical or irrational; and (vi) making a decision based on incorrect information provided in the departmental issues paper. 3. The Respondent's decision was infected with jurisdictional error by reason of: (a) the decision being manifestly unreasonable, illogical or irrational; or (b) alternatively, the Respondent: (i) inflexibly applying a policy or fettering the exercise of his discretion; and/or (ii) failing to disclose to the Applicant, prior to the making of his decision, the substance or effect of the abovementioned policy and provide the Applicant with an opportunity to deal with it. 4. Jurisdictional error can be inferred from the result of the decision or, further or alternatively, because the Respondent failed to discharge his statutory function according to law. Particulars (a) The result of the Respondent's decision bespeaks error and, in the premises, jurisdictional error (and the failure of the Respondent to discharge his statutory function) can be inferred. 42 His Honour rejected all the grounds of review except for the ground relating to unreasonableness. Accordingly, it is sufficient to focus on his Honour's reasons for upholding that particular ground of review because it forms the basis for the Minister's appeal. 43 The steps in the primary judge's reasoning leading to his conclusion that the Minister's decision was unreasonable may be summarised as follows. 44 First, with particular reference to [51]-[54] of the Minister's reasons, although the primary judge did not consider that the Minister had fettered his discretion or adopted an unlawful policy, his Honour viewed these paragraphs as indicating that the Minister had "put to one side the evaluation against countervailing considerations that the likelihood of Mr Stretton's reoffending is low" (at [50]). Moreover, his Honour found at [50] that these paragraphs disclosed that the Minister had equated "subjective descriptions of an event as serious with its objective seriousness." 45 Secondly, his Honour then referred to various paragraphs in the plurality judgment in Li, including [68] and [76]. For convenience, I will set out those paragraphs from Li (footnotes omitted): 68. Lord Greene MR's oft-quoted formulation of unreasonableness in Wednesbury has been criticised for "circularity and vagueness", as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. 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 - nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided. And the same principles evidently informed what was said by Dixon J about review of an administrative decision in Avon Downs Pty Ltd v Federal Commissioner of Taxation, which was decided less than two years after Wednesbury, at a time when it was the practice of the High Court to follow decisions of the Court of Appeal in England which appeared to have settled the law in a particular area. … 76. As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. 46 Thirdly, at [54] the primary judge acknowledged the distinction drawn by Gummow J in inter alia Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 (Eshetu) at [119]-[137] between judicial review of the exercise of a discretionary power as opposed to judicial review of a decision made under a provision the operation of which depended upon "a state of anterior, administrative satisfaction with respect to particular matters". The primary judge further noted that this distinction was drawn by Gummow J in support of his view that the statements by Lord Greene MR in Wednesbury were inapt in the second type of case. 47 Fourthly, his Honour noted at [55] that the plurality in Li referred to the High Court's earlier decision in Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 (Avon Downs) which, his Honour observed, did not involve exercise of a discretionary power, but rather illustrated the second of the matters the subject of the distinction drawn by Gummow J. 48 Fifthly, the primary judge considered the relevance of certain observations in Re Patterson; ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 (Patterson), particularly those of Kirby J at [333] and [338]. Those observations were directed to a decision made by the Minister under s 501(3) of the Migration Act, where the criterion of the "national interest" was expressly engaged. This led the primary judge to observe that, for Kirby J: …even a discretion exercised by a political officer and informed by a criterion as general as the national interest was not incapable of judicial review on just the basis later described by the majority in Li. The primary judge viewed as significant Kirby J's acknowledgment that, while the general problem of paedophilia in criminal offences against children was one involving the "national interest", the Minister's decision under s 501(3) of the Migration Act is not made "at such a level of abstraction", but rather "is one personal to the visa holder". 49 It is desirable to set out [57]-[62] of the primary judge's reasons for judgment as they contain the core of his Honour's reasons why he viewed the Minister's decision to be unreasonable in a legal sense and thereby vitiated by jurisdictional error: 57 In this case, the national interest was not an express consideration, for the discretion fell to be exercised under s 501(2), not s 501(3), of the Act. But that did not mean that the decision was not one "personal to the visa holder". That the Minister chose to act just on an expectation that Mr Stretton should "forfeit the privilege of being able to remain in Australia given the serious nature of his criminal offending" did not thereby render the exercise of his discretion immune from challenge on the ground of unreasonableness or irrationality, just as Kirby J had likewise concluded in Re Patterson in respect of an exercise of a discretion grounded in an assessment of the national interest. Further, repugnant though any paedophilia is in our society and even though Mr Stretton conceded that his offences were serious, it did not follow from this that the Minister was relieved from considering that subject objectively, at least by reference to the class of offence committed. Objectively and in a relative sense, these offences were at the lower end of the range of depravity and worse that paedophilia can entail. The length of the actual custodial element in the sentence imposed on him underscores that. Her Honour Judge McGinness made a like point in her sentencing remarks in discounting allegedly comparative sentences put to her by the Crown. The Minister was not given the benefit of any such assessment by his department in the Issues Paper. 58 Had the Minister chosen to act on his evaluation of the risk presented by Mr Stretton as "low", tempered by an understanding of the objective seriousness of the offences concerned, he would then have had to confront and balance the countervailing factors (termed "discretionary considerations" by Kirby J in Re Patterson) which he noted. By the time when Mr Stretton came to commit these offences, he had been resident in Australia for nearly half a century, more than that by the time when the Minister made his decision. He came here as an infant. He had no ties with the United Kingdom, other than the circumstance of his birth. He had not even returned there to visit, much less did he have any adult experience whatsoever of living and working there. 59 Mrs Stretton likewise had no ties with the United Kingdom other than a circumstance of birth. Notwithstanding his offending conduct, Mr Stretton was not estranged from his wife of some 40 years. Nor was he estranged from any of his children save, for the most understandable of reasons, from the mother of the grandchild he molested. Nor was he estranged from his aged and ailing, Australian citizen father. Mr Stretton had had a troubled youth, in Australia, but a feature of his adulthood in Australia after he met his wife and until 2009 was a blameless life, sustained work and deep community and family involvement. By the time the Minister made his decision, Mr Stretton was ten months into the two year period of the suspension of the balance of his sentence, with not a hint of recidivism. There was no need to deport Mr Stretton in order to protect the victim or her siblings, for, though they lived in Australia, her and her mother remained estranged from him, as were that daughter's other children (his only other grandchildren). The risk of harm to others was low. To cancel Mr Stretton's visa would cast him adrift in his advancing years in a foreign land and remove him from the regular society of those of his children, each Australian citizens, who wished to continue association with him, not to mention the society of his own father. It would also present his blameless wife, likewise long a stranger to the United Kingdom and equally long a resident of Australia, with an agonising dilemma. On the one hand, she could stand by her husband abroad, not just with like hardships to her husband but with a hardship that extended also to losing regular society with the daughter and grandchildren who were estranged from Mr Stretton, not her; on the other hand, she could remain here and cast adrift a life partner, already assessed as having a risk of suicide. 60 The Minister's decision was not bizarre. It was never part of Mr Stretton's case that his decision was dishonest and, in any event, there is not a scintilla of evidence which would show that. The exercise of the discretion was though, with respect to the Minister and when all of the matters referred to in the preceding paragraph are considered objectively, unreasonable in the sense referred to by the majority in Li. Another way of describing the nature of the error, also found in Li, is to adopt a pithy turn of phrase used by Mr G Airo-Farulla: "Reasonableness, rationality and proportionality", in Groves M and Lee HP, Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007) p 212 at p 215, which commended itself, at [30], to French CJ. The Minister has, with respect, "[taken] a sledgehammer to crack a nut". His exercise of the discretion conferred on him was, in the circumstances, in excess of what, on any view, was necessary for the purpose it served. 61 It follows that the Minister's decision was attended with jurisdictional error. It must be quashed. A consequence of that is that there is no lawful basis for Mr Stretton's continued immigration detention. He must be released from immigration detention forthwith. The Minister must pay Mr Stretton's costs, including reserved costs. There will be orders accordingly. 62 The nature of the jurisdictional error means that remission of the matter to the Minister for consideration afresh is not warranted.

Resolution of the appeal 50 The central issue in the appeal is whether the primary judge correctly applied the principles concerning the head of judicial review for unreasonableness in the legal sense which are to be found in authorities such as Li and the Full Court's decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Singh). It might be noted that although the primary judge analysed Li at some length, it appears that his Honour's attention was not drawn to Singh. 51 It is appropriate to look closely at both these decisions, along with some other recent High Court authorities.

The decision in Li 52 Li involved judicial review of a statutory discretionary power which was vested in the Migration Review Tribunal under s 363(1)(b) of the Migration Act, namely the power to adjourn a review from time to time. 53 The plurality (Hayne, Kiefel and Bell JJ) held that there was a legal presumption that the legislature intended that such a statutory discretionary power be exercised reasonably (see also at [23]-[29] per French CJ and at [88]-[92] per Gageler J). 54 In determining the standard of judicial review for reasonableness, the plurality held that it was not confined to the concept of "Wednesbury unreasonableness" as articulated by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The plurality emphasised that the "legal standard of unreasonableness" in Australia is not 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…" (at [68]). 55 Significantly, the plurality emphasised that the legal standard of reasonableness is the standard which is indicated by the true construction of the relevant statute. This serves to underline the critical importance of construing the statute in determining whether or not an exercise of a statutory power is unreasonable in the legal sense (at [63] and [67]). 56 Within the bounds of legal unreasonableness, there "is an area within which a decision-maker has a genuinely free discretion" (at [66]). It is critical that, in exercising a judicial review function, the courts not exceed "their supervisory role by undertaking a review of the merits of an exercise of discretionary power" (at [66]). Application of a standard of legal unreasonableness "does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker" (at [66]). (To similar effect, see at [30] per French CJ and at [105]-[113] per Gageler J who, arguably, placed even greater emphasis on the "stringency" of the test). 57 The concept of "unreasonableness" can accommodate individual heads of judicial review, including a "proportionality analysis by reference to the scope of the power" (at [73]). Thus, although the argument was not presented in this way in Li itself, the plurality stated that, if the Migration Review Tribunal gave "excessive weight" to the question whether the visa applicant had had an opportunity to present her case, "an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached (at [74]). It may be interpolated at this point that, in the recent decision in McCloy v New South Wales [2015] HCA 34 at [3], French CJ, Kiefel, Bell and Keane JJ described the term "proportionality" in Australian law as describing a class of criteria: …to determine whether legislative or administrative acts are within the constitutional or legislative grant of power under which they purport to be done. (Emphasis added.) This may indicate that the concept of proportionality is an aspect of judicial review of administrative action. By analogy with the approach in House v The King [1936] HCA 40; (1936) 55 CLR 499 (House) (i.e. that an appellate court should not interfere with the exercise of a discretionary power by an inferior court merely because the appellate court would have taken a different course), it must be evident in a judicial review of the exercise of a statutory power by a tribunal that there has been some error in exercising the discretion (at [75]). The plurality's statement at [76] is also relevant and is set out in [18] above. 58 The need for judicial restraint was further emphasised by the High Court recently in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50 (Plaintiff M64) at [23] per French CJ, Bell, Keane and Gordon JJ (footnotes omitted): In particular, judicial review is concerned with whether the Delegate's decision was one which he was authorised to make; it is not: "an appellate procedure enabling either a general review of the ... decision ... or a substitution of the ... decision which the ... court thinks should have been made." 59 The High Court concluded in Li that the Migration Review Tribunal had fallen into jurisdictional error in exercising its discretion under s 363 of the Migration Act to refuse the visa applicant an adjournment. The plurality's core reasoning and conclusion is reflected in [85] (footnotes omitted): The Tribunal's error might be identified as giving too much weight to the fact that Ms Li had had some opportunity to present evidence and argument and insufficient weight to her need to present further evidence. It would not appear that the Tribunal had regard to the purposes for which the statutory discretion in s 363(1)(b) is provided in arriving at its decision. It is not possible to say which of these errors was made, but the result itself bespeaks error. In the circumstances of this case, it could not have been decided that the review should be brought to an end if all relevant and no irrelevant considerations were taken into account and regard was had to the scope and purpose of the statute. Because error must be inferred, it follows that the Tribunal did not discharge its function (of deciding whether to adjourn the review) according to law. The Tribunal did not conduct the review in the manner required by the Migration Act and consequently acted beyond its jurisdiction.

The decision in Singh 60 Singh involved an appeal from a decision of the Federal Circuit Court of Australia which quashed a decision of the Migration Review Tribunal involving a refusal to grant an adjournment under s 363(1)(b) of the Migration Act. It is important to note that this statutory discretionary power involved a matter of practice or procedure, rather than substance. The same may be said with regard to the power which was reviewed in Li. I will discuss the significance of this distinction below. 61 The relevant principles established in Singh may be summarised as follows: (a) legal unreasonableness "is invariably fact dependent" and requires a careful evaluation of the evidence. The outcome of any particular case in which it is claimed that there has been a legally unreasonable exercise of a discretionary power will depend on the application of the principles from Li and the authorities discussed therein, rather than on an analysis of factual similarities or differences between individual cases, including Li (at [42]); (b) there is a presumption of law that the Parliament intends an exercise of statutory power to be reasonable (at [43]); (c) there are two species of legal unreasonableness, namely where the review court has identified an underlying jurisdictional error in the decision-making process but the concept of legal unreasonableness can also be "outcome focused" where there is no "evident and intelligible justification" (citing Li at [66] per Hayne, Kiefel and Bell JJ and at [105] per Gageler J) (at [44]); (d) where there are reasons in support of an exercise of discretion, those reasons provide the focus for an assessment as to whether the decision is unreasonable in the legal sense and, in such a case, it would be rare where the reasons demonstrate a justification but the ultimate exercise of the power is found to be legally unreasonable ([45]-[47]); and (e) perhaps most importantly of all, the standard of legal unreasonableness applies across a wide range of statutory powers, but the indicators of legal unreasonableness are found in the scope, subject and purpose of the particular statutory provisions in issue in any given case, as well as being fact dependent (at [48]). 62 Cases such as Li and Singh identify important principles which guide the nature and scope of the head of judicial review for legal unreasonableness. Just as there are "subtleties" encompassed in the broad concept of jurisdictional error (see Plaintiff M64 at [26]) so there are with the head of unreasonableness and its relationship with the concept of proportionality. The relevant principles which have emerged to date provide helpful guidance but they ought not to be viewed as exhaustive or as encouraging a formulaic approach to the application of these heads of review which proceeds by way of an exercise in "ticking the boxes" (see the pertinent observations of Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [77] ). A more sophisticated approach is required, one which focuses central attention on the question whether an administrative decision is one which is within the authority of the decision-maker to make. This necessarily requires that close attention be given to relevant features of the particular statutory framework within which that authority arises. That framework necessarily includes the subject matter, scope and purpose of the relevant statutory power. But the statute also frequently provides additional indicators which assist in determining whether a particular exercise of a statutory discretionary power is one which exceeds the authority of the decision-maker and is legally unreasonable. Rather than discuss these matters in the abstract, it is desirable to illustrate their relevance to the standard of legal unreasonableness by reference to the Minister's discretionary power under s 501(2) of the Migration Act, to which I now turn.

Breadth of the Minister's discretion 63 When the Minister decided to cancel Mr Stretton's visa, s 501 provided as follows: 501 Refusal or cancellation of visa on character grounds Decision of Minister or delegate - natural justice applies (1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. Note: Character test is defined by subsection (6). (2) 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. Decision of Minister - natural justice does not apply (3) The Minister may: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person; if: (c) the Minister reasonably suspects that the person does not pass the character test; and (d) the Minister is satisfied that the refusal or cancellation is in the national interest. (4) The power under subsection (3) may only be exercised by the Minister personally. (5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3). Character test (6) 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 subsection (7)); or (aa) the person has been convicted of an offence that was committed: (i) while the person was in immigration detention; or (ii) during an escape by the person from immigration detention; or (iii) after the person escaped from immigration detention but before the person was taken into immigration detention again; or (ab) the person has been convicted of an offence against section 197A; or (b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or (c) having regard to either or both of the following: (i) the person's past and present criminal conduct; (ii) the person's past and present general conduct; the person is not of good character; or (d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would: (i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in Australia; or (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a segment of that community; or (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way. Otherwise, the person passes the character test. Substantial criminal record (7) For the purposes of the character test, a person has a substantial criminal record if: (a) the person has been sentenced to death; or (b) the person has been sentenced to imprisonment for life; or (c) the person has been sentenced to a term of imprisonment of 12 months or more; or (d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or (e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution. Periodic detention (8) For the purposes of the character test, if a person has been sentenced to periodic detention, the person's term of imprisonment is taken to be equal to the number of days the person is required under that sentence to spend in detention. Residential schemes or programs (9) For the purposes of the character test, if a person has been convicted of an offence and the court orders the person to participate in: (a) a residential drug rehabilitation scheme; or (b) a residential program for the mentally ill; the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program. Pardons etc. (10) For the purposes of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if: (a) the conviction concerned has been quashed or otherwise nullified; or (b) the person has been pardoned in relation to the conviction concerned. Conduct amounting to harassment or molestation (11) For the purposes of the character test, conduct may amount to harassment or molestation of a person even though: (a) it does not involve violence, or threatened violence, to the person; or (b) it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person. Definitions (12) In this section: court includes a court martial or similar military tribunal. imprisonment includes any form of punitive detention in a facility or institution. sentence includes any form of determination of the punishment for an offence. Note 1: Visa is defined by section 5 and includes, but is not limited to, a protection visa. Note 2: For notification of decisions under subsection (1) or (2), see section 501G. Note 3: For notification of decisions under subsection (3), see section 501C. 64 There are several relevant features to note about s 501(2). The Minister's discretion to cancel a visa is substantially unfettered in the sense that there is no express list of factors which the Minister is to take into account in deciding whether or not to exercise the power. That is not to say, however, that the power is without limitation. Those limits include the following. 65 First, the Minister's power to cancel a visa is only enlivened if the following two pre-conditions are present, namely: (a) the Minister "reasonably suspects" that the visa-holder does not pass the character test as defined in s 501(6); and (b) the visa-holder does not satisfy the Minister that that person passes the character test. 66 Secondly, as Allsop CJ and Katzmann J stated in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 (NBMZ) at [6]: …the law imposes certain limits on the exercise of the discretion. The Minister may not act arbitrarily, capriciously or legally unreasonably. The subject matter, scope and purpose of the Act may also require that certain considerations be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39; and Huynh at [71]… Those observations, although directed to the Minister's discretion under s 501(1) of the Migration Act, apply equally to the discretion under s 501(2). 67 In NBMZ, Allsop CJ and Katzmann J also made the following further relevant observations at [8] concerning the nature and scope of the discretion under s 501(1) to refuse to grant a visa (which, again, apply equally to the discretion under s 501(2)) (emphasis in original): None of these authorities provides the answer to the question as to whether the legal consequence of the decision must be taken into account. The breadth of the discretion under s 501(1) can be accepted; a broad discretion remains, however, confined by the subject matter, scope and purpose of the Act: Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492 at 505 (per Dixon J). The decision of the Minister was made within the framework of the Act. The statutory effect of a decision to refuse a visa is removal of the applicant from the country as soon as practicable, and in the meantime, detention. The focus of the Court in Djalic was upon the asserted factual difficulty of return to the former Yugoslavia, about which there was little evidence. The Court was not directing itself to the legal consequences of a decision to refuse a visa. 68 Thirdly, consistently with Li, there is a presumption that the Parliament intended the Minister's discretion to be exercised reasonably in the legal sense of that word as discussed above. 69 Fourthly, the Migration Act provides additional indicators which assist in evaluating a decision under s 501(2) with a view to determining whether the decision is beyond the authority conferred upon the Minister and is unreasonable in the legal sense. It is important to emphasise, however, that the following indicators are not intended to be exhaustive, nor is it suggested that any or all of them is determinative. 70 The indicators which suggest that the authority to decide whether or not to cancel a person's visa under s 501(2) is broad include the following: (a) the absence in the statute of an explicit list of considerations to be taken into account in considering the exercise of the power (which does not deny of course that some such considerations may be apparent from an analysis of the subject matter, scope and purpose of the legislation); (b) the statement of the object of the legislation in s 4 of the Migration Act is "to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens". The concept of the "national interest" is necessarily broad. It is a concept which implicitly informs many of the individual provisions in the Migration Act. It permeates the legislation as a whole and is not confined to s 501(3), where the "national interest" is an express criterion for the purposes of the exercise of the Minister's power to refuse to grant or cancel a visa in the circumstances specified. The concept of the "national interest" is necessarily a broad one and involves an evaluative judgment on a wide range of potentially relevant matters. Some of those considerations will relate to the rights and interests of the individual visa-holder and his or her family and associates, while other considerations will relate to broader community and policy interests; (c) the fact that the discretion is conferred upon the Minister who holds political office and is accountable to the Parliament is another relevant matter which indicates that the authority exercised under s 501(2) is intended to be broad. This is further underlined by the fact that the Minister is empowered to delegate his or her power under s 501(2) (see s 496 of the Migration Act). Moreover, the Minister also has the power under s 499 to make directions which are then binding on such a delegate. If, however, the Minister determines in any particular case to exercise the power under s 501(2) personally, there is another important feature which suggests that the Minister's authority was intended to be broad. That feature relates to the fact that, while a delegate's decision under s 501(2) is subject to a merits review in the Administrative Appeals Tribunal under s 500(1)(b), the Parliament has chosen not to provide such an avenue of review where the Minister personally makes a decision under s 501(2) (see the observations of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [44] concerning the relevance of this consideration to the ambit of judicial review of fact-finding); and (d) the obligation imposed on the Minister by s 501G(1)(e) of the Migration Act to provide an aggrieved person with a written statement of reasons for a decision made under s 501(2) enables both the aggrieved visa-holder and others, including a judicial review court, to ascertain whether there is an "evident and intelligible" justification for such a decision, as well as revealing the possible presence of other vitiating errors in the reasoning process. That is not to lose sight, however, of the Full Court's reminder in Singh that it will be rare for a Court to intervene on the basis of unreasonableness where the reasons disclose such a justification. Moreover, nothing I have said on this topic is intended to deny the possibility of legal unreasonableness being demonstrated even in the case where there is no such statement of reasons (see Avon Downs at 360 per Dixon J). Nor is it intended to derogate from the well-established principles concerning the need for restraint in reviewing such a statement of reasons (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). It is important that there appears from a statement of reasons provided in compliance with the obligation imposed by s 501G(1)(e) (see also s 25D of the Acts Interpretation Act 1901 (Cth)) that the decision-maker has made a balanced and objective appraisal and weighing of the potentially wide range of matters requiring consideration in exercising the significant and substantive power under s 501(2). One of the important purposes served by the obligation to provide a statement of reasons is to show whether or not the power conferred by s 501(2) has been exercised for legitimate purposes and not for an impermissible purpose, such as to punish the visa-holder (see Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at [37] per Flick, Griffiths and Perry JJ). In particular, without doubting the relevance to the exercise of that power of protecting the Australian community, it is important that the value of the statement of reasons is not diminished by resort to superficial aphorisms or empty rhetoric, which is illustrated by phrases such as "expectations of the Australian community" and the "privilege" of being a visa-holder. The former concept has the potential to mask a subjective value judgment and to distort the objectivity of the decision-making process. The latter expression is simply misleading as a legal concept. Under Australian law, having the status of a visa-holder is not a privilege. Visa-holders hold statutory and non-statutory rights which are inconsistent with the notion of their status being described simply as a "privilege". For example, many visa-holders have statutory rights of review and all visa-holders have rights relating to judicial review of adverse migration decisions. The statutory rights of a visa-holder are, of course, subject to the lawful exercise of executive powers such as those under s 501. But that fact does not justify the position of a visa-holder under Australian law being described as merely one of "privilege" in a legal sense. 71 Fifthly, and significantly, the power to either refuse to grant or to cancel a visa is a substantive power. It is to be contrasted with powers of a procedural nature, such as the power to adjourn the hearing of a review of a decision concerning the grant or cancellation of a visa as arose in both Li and Singh. While it may be accepted that, absent clear words to the contrary, there is a presumption that the Parliament intends all statutory discretions and powers to be exercised reasonably in the legal sense of that term, one of the matters which informs the legal standard of reasonableness is whether the subject matter of the power is substantive or procedural. Of course, other matters which inform that standard have to be taken into account but, generally speaking, the intensity of the legal standard is likely to be higher in the case of review of the exercise of a discretion which is of a procedural character. 72 Applying these principles here, I consider that the Minister did not exceed his lawful authority in determining to cancel Mr Stretton's visa. I respectfully disagree with the primary judge's view that the Minister put to one side the evaluation against countervailing considerations that the likelihood of Mr Stretton's reoffending was low. Rather, the statement of reasons reveals that the Minister properly evaluated the countervailing considerations to which I have referred to above which were in favour of not cancelling Mr Stretton's visa with the Minister's primary concern to protect the Australian community in the event that Mr Stretton reoffended, even where the risk of that occurring was accepted to be low. I consider that it was reasonably open to the Minister to reach the ultimate conclusion which he did after properly weighing the relevant competing considerations. 73 Nor do I agree with the primary judge's view that the Minister's assessment that Mr Stretton's offences were so serious as to make even a low risk of him reoffending to be "intolerable". It is notable that the Minister did not use the word "intolerable" in his statement of reasons: rather that is the primary judge's paraphrasing of this aspect of the Minister's reasons. The position may be different if such a pejorative word was used by the Minister but that is not the case. The Minister was effectively saying that because any reoffending by Mr Stretton could result in serious harm to a member of the Australian community, which the Minister viewed as unacceptable, this outweighed the strong countervailing considerations in favour of not cancelling his visa. In my view, it was within the Minister's authority to come to that view. 74 It is important to bear constantly in mind in applying the head of review of legal unreasonableness the admonition that to describe reasoning as unreasonable (or irrational) may merely be an emphatic way of disagreeing with it (see Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [5] per Gleeson CJ and Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [34] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). The fact that a Court exercising judicial review may disagree with a primary decision-maker's evaluation of the relevant facts and considerations in the exercise of a statutory discretionary power is insufficient of itself to justify judicial intervention. 75 It is notable that the primary judge acknowledged in [60] of his reasons for judgment that the Minister's decision "was not bizarre", however, his Honour concluded that the decision was unreasonable in the sense referred to by the plurality in Li because it was the result of an exercise of discretion which, in the circumstances, was "in excess of what, on any view, was necessary for the purpose it served" (emphasis added). I respectfully disagree with his Honour's analysis. The term "necessary" does not appear in either s 501(2) or in the Minister's statement of reasons. The primary judge appears to have introduced an extraneous concept in his analysis. In addition, it is notable that the primary judge's analysis did not include a clear identification of the purposes to which the decision was directed. Once it is accepted that at least one of the purposes served by the power conferred upon the Minister under s 501(2) is to protect the Australian public, it is difficult to see how the Minister's decision exceeded that purpose. In any event, I consider that the discretion conferred upon the Minister under s 501(2) also serves other purposes and is not confined to protecting the Australia public. Other relevant purposes must include giving effect in an appropriate case to the personal circumstances of the visa-holder and his or her family and associates. As is evident from the Minster's statement of reasons, he appreciated that the power was not confined to the single purpose of protecting the Australian community and that he was also obliged to take into account matters which were personal to the visa-holder. As I have explained above, I consider that the Minister came to a decision within his lawful authority after weighing the relevant competing considerations which were brought to his attention. The decision to cancel Mr Stretton's visa was not unreasonable in the legal sense. 76 With great respect to the primary judge, I consider that he misapplied the relevant principles in arriving at the opposite conclusion. His Honour's error is perhaps most clearly evident in the final paragraph of his reasons for judgment, where his Honour stated that the "nature of jurisdictional error means the remission of the matter to the Minister for consideration afresh is not warranted". This seems to suggest that the primary judge considered that the Minister could not revisit the application of s 501(2) to Mr Stretton's circumstances because there was only one decision which was lawfully open to be made, which was not to cancel Mr Stretton's visa. If that be a correct characterisation of the primary judge's reasoning, it strongly suggests that his Honour put himself in the Minister's shoes and decided that no other outcome was open other than to permit Mr Stretton to retain his visa. I do not consider that the legal standard of unreasonableness goes so far as to effectively substitute the view of the Court exercising judicial review for that of the Minister. The Parliament has vested the authority to make that decision in the Minister, not the Court. It would appear that the primary judge may have overlooked an important constraint in the legal standard of unreasonableness, namely that there is an area within which an administrative decision-maker has "a genuinely free discretion" and in exercising judicial review it is insufficient that the review Court would itself have come to a different decision to that of the primary decision-maker. A similar constraint applies to appellate review in accordance with the principles in House. 77 For these reasons, the appeal should be allowed.

Notice of contention 78 The notice of contention raises two grounds: (a) in cancelling Mr Stretton's visa, did the Minister rigidly and inflexibly apply a policy to the effect that the visa of any person convicted of a sexual offence involving a child should be cancelled; and (b) did the Minister deny Mr Stretton procedural fairness by failing to consider the contention and supporting material before the Minister that cancellation of Mr Stretton's visa would have a significant deleterious effect on the mental health of his youngest daughter? 79 Both these grounds were considered and rejected by the primary judge. In my respectful view, his Honour was correct to do so. 80 As to the first ground raised by the notice of contention, I consider that the Minister's statement of reasons is inconsistent with the contention that the Minister inflexibly applied a policy of cancelling the visa of any child sex offender. That statement records the Minister taking into account a wide range of considerations, including many which were personal to Mr Stretton himself and had been raised by him or on his behalf. They included such matters as Mr Stretton's personal history and difficult childhood, his remorse for the sexual offences, his future business plans, his strong ties with Australia and his limited ties with the United Kingdom and the detrimental effect which his removal from Australia would have on him personally as well as his wife and family. Consideration of these matters necessarily focus the Minister's attention on the particular circumstances of Mr Stretton's case. 81 It is also clear from the statement of reasons that the Minister gave considerable weight to the need to protect the Australian community. Having found that there was only a low risk of Mr Stretton reoffending, the Minister considered that if Mr Stretton did commit another child sex offence this could result in serious harm to a member of the Australian community. The Minister concluded that although there were "strong countervailing considerations" in Mr Stretton's case (some of which are summarised above) they were insufficient to justify not cancelling his visa having regard to the need to protect the Australian community. No basis has been established for doubting the accuracy of the Minister's statement of reasons. The Minister did not apply a policy inflexibly and without taking into account the individual circumstances of Mr Stretton's case. 82 Mr Stretton sought to support the claim that the Minister applied a policy inflexibly by relying on statements made by the Minister in a talk-back radio interview shortly after the primary judge published his reasons for judgment (i.e. approximately eight months after the visa cancellation decision). The transcript of that interview records the following relevant exchanges (emphasis added): HADLEY: Now before I get to your normal portfolio, I spoke yesterday about a convicted Queensland paedophile, a grandfather, who is being released as we speak if he hasn't already from Villawood Detention Centre after the Federal Court quashed your decision to cancel his visa. Now this bloke was born in the UK, held a five year resident return visa, he pleaded guilty in 2013 to three counts of indecently treating a child under the age of 12 who was quote "his lineal descendent (sic)" - his grandchild, under his care. He was convicted and sentenced to two years jail, suspended after six months of course, which is another story for another day - what we do with paedophiles in Australia. Justice John Logan has ruled your use of discretion was unreasonable "used a sledgehammer to crack a nut." Have you still got a sledgehammer in the bag you can use there somewhere? MINISTER MORRISON: Well not as Social Services Minister but as Minister for Immigration I had just zero tolerances for paedophiles. I cancelled numerous visas for people who were involved in that and we actually changed the law to ensure there was an automatic cancellation for those who were involved in serious offences and I make no apologies for it and I wish he was going home. HADLEY: Can your now Minister, Minister Dutton, have another crack or is that the end of it? MINISTER MORRISON: Well if it is a Federal Court decision I imagine then it's up to the Government to be able to take it further with appeals. I mean this is an important part of the system that if you commit a crime when you are on a visa, I don't care how long ago it was and particularly if it is a crime against children then you have no place here, absolutely no place here. HADLEY: But why - I mean look I know that Justice Logan would say "look I am not interested in the whys and where fors of paedophilia I'm dealing purely in case law." But at the end of the day if there is a Federal Court judge who thinks it is ok for a bloke on a visa who performed sexual acts on his grandchild to stay here we have a problem with the Federal Court don't we? MINISTER MORRISON: Well look I have moved on to a different portfolio now and I don't get the briefs on these cases or the court decisions. But often the issues here more generally speaking when courts overturn these decisions relate to the persons (sic) connection to Australia and how long they have been here. Frankly I don't care; I really don't care how long they have been here. If you came out and you're on a visa you are not a citizen - we are already having a discussion in this country about citizenship for those who are engaging with terrorism and why we would strip their citizenship away. Well frankly if you are on a visa and you have been convicted of an offence involving sex with a child, go home. Full stop. 83 The highlighted statements of the former Minister which are highlighted in the passages above convey the strength of his views. It is understandable why some people might construe those statements as suggesting that the former Minister did have a rigid policy to remove any visa holder who committed a child sex offence. On balance, however, I do not consider that those statements establish the fact that there was such a policy and that it was applied to Mr Stretton in circumstances where: (a) the former Minister was not cross-examined on those statements; (b) the statements were made in the context of a radio interview which took place approximately eight months after the decision was made to cancel Mr Stretton's visa; and (c) the statements were made at a level of generality and without specific reference to Mr Stretton. 84 In my view, the former Minister's statements are equivocal. I would not allow the fresh evidence to be adduced because, even if it were, it would not affect the outcome. The interlocutory application filed on 17 July 2015 seeking leave to rely upon this fresh evidence should be dismissed. 85 As to the second ground of the notice of contention, the primary judge rejected the submission that the Minister fell into jurisdictional error by not having regard to what was claimed to be a mandatory relevant consideration, namely the effect on Mr Stretton's youngest daughter if he were removed from Australia. His Honour held that this was not a mandatory relevant consideration and the Minister was not obliged to make any specific reference to it in his statement of reasons. 86 I respectfully agree with the primary judge's reasoning on this matter. I would also add that, in any event, no inference should be drawn that the Minister did not in fact take into account the circumstances of this particular daughter. The statement of reasons contains several references to the Minister having considered all the submissions and material in the Departmental brief. The brief included the submissions and supporting evidence put forward by or on behalf of Mr Stretton, including the submission and supporting material (including the particular daughter's own statutory declaration and the medical evidence of her depression) relating to that daughter's individual circumstances. Although neither the Departmental submission nor the statement of reasons made any specific reference to this daughter's position, there is no basis for concluding that her circumstances were ignored. As noted above, there is no reason to doubt the veracity of the Minister's statements in his statement of reasons. 87 I should also add that, since preparing these reasons, I have had the advantage of reading the reasons in draft of both the Chief Justice and Wigney J. I respectfully agree with them.

Conclusion 88 For these reasons: (a) the appeal should be allowed and consequential orders should also be made; and (b) the notice of contention should be dismissed. 89 The respondent should pay the Minister's costs of the proceeding as agreed or assessed. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

WIGNEY J: 90 I have read in draft the reasons to be published by the Chief Justice and Griffiths J. I agree with the orders proposed by Griffiths J. I also agree with the reasons of Griffiths J, together with the additional analysis and reasoning, by way of elaboration, of the Chief Justice. I wish to add but a few brief additional observations. 91 The applicable principles relating to the legal standard of unreasonableness, in the context of judicial review, are dealt with comprehensively in the reasons of the Chief Justice and Griffiths J. It is unnecessary, and perhaps undesirable, for me to add anything to what has been said by their Honours. That is particularly because, as pointed out by the Chief Justice (at [7] and [10]), the concept of legal unreasonableness is not amenable to minute and rigidly-defined categorisation or a precise textual formulary, especially when it comes to the outcome-focussed application of the concept. Any addition to, or gloss on, the existing descriptions, explanations or explications of the concept is unlikely to assist. 92 The critical point is that, in reviewing a decision on the ground of legal unreasonableness, the Court's role is strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76], [105]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44]-[45]), or if the decision is within the "area of decisional freedom" of the decision-maker (Li at [28], [66], [105]; Singh at [44]), it would be an error for the Court to overturn the decision simply on the basis that it would have decided the matter differently. Unfortunately, and with the greatest respect to the primary judge, it is difficult to escape the conclusion that that is what occurred here. 93 Four key findings appear to have underpinned the primary judge's conclusion that the Minister's decision to cancel Mr Stretton's visa was legally unreasonable. 94 First, the primary judge found that Minister failed to take into account (or "put to one side") the fact that the likelihood of Mr Stretton reoffending was low, and therefore the risk to the Australian community of Mr Stretton's continued presence in Australia was low (Judgment at [50]). According to the primary judge, that was because the Minister considered that, given the seriousness of the offences committed by Mr Stretton, even a low risk of reoffending by Mr Stretton was "intolerable" (Judgment at [50]). 95 Second, the primary judge found that the Minister did not himself assess the objective seriousness of Mr Stretton's offence, but rather acted on subjective descriptions of the offence as serious (Judgment at [50] and [57]). The Minister accepted that Mr Stretton's offending was very serious. The primary judge, however, found that Mr Stretton's offence was at the lower end of the range of such offences (Judgment at [57]). 96 Third, the primary judge reasoned that the Minister's erroneous approach to the risk to the Australian community and the objective seriousness of the offence led him to fail to "confront and balance the countervailing factors" - basically the considerable hardship that would be suffered by Mr Stretton and members of his family if his visa was cancelled (Judgment at [58]-[59]). In effect, the primary judge found that the Minister gave insufficient weight to the countervailing considerations. 97 Fourth, the primary judge found that, having regard to his findings concerning the risk to the Australian community, the objective seriousness of Mr Stretton's offence and the countervailing factors, the decision to cancel Mr Stretton's visa was "in excess of what, on any view, was necessary for the purpose it [the power to cancel a visa] served" (Judgment at [60]). Whilst the primary judge did not expressly elaborate on the "purpose" of the Minister's discretion to cancel a visa under s 501(2) of the Migration Act 1958 (Cth), it would appear that his Honour proceeded on the basis that the purpose, or at least the primary purpose, was to protect the Australian community from the risk of harm. 98 There are difficulties with each of these findings. 99 First, a fair reading of the Minister's reasons reveals that the Minister expressly had regard to the fact that the risk of Mr Stretton reoffending was low (see in particular [22] of the Minister's reasons). The Minister did not put that evaluation to one side because he viewed any risk as intolerable. Rather, the Minister reasoned that even though the risk of Mr Stretton reoffending was low, the risk to the Australian community was nonetheless significant given the serious harm that would result if Mr Stretton did reoffend (see [23] and [54] of the Minister's reasons). It does not follow that the Minister disregarded his acceptance that there was only a low risk that Mr Stretton would reoffend. The primary judge may not have agreed with the Minister's finding and reasoning in this regard. It was, however, at the very least open to the Minister to reach this finding concerning the risk to the Australian community. 100 Second, a fair reading of the Minister's reasons reveals that the Minister did form a view about the objective seriousness of Mr Stretton's offence. Whilst the Minister referred to and adopted observations made by the trial judge concerning the seriousness of the offending, it is tolerably clear (in particular from [11], [12] and [13]) that the Minister formed his own view about the seriousness of the offending. Whilst it may be correct, as the primary judge found, that Mr Stretton's offence was at the "lower end of the range of depravity and worse that paedophilia can entail" (Judgment at [57]), it does not follow that the offence was not objectively very serious. More significantly, and whatever the primary judge's view may have been concerning the objective seriousness of the offence, it was at the very least open to the Minister to form the view that the offence was objectively very serious. 101 Third, there was no basis for the primary judge's finding that the Minister did not "confront and balance" the countervailing factors. It is clear from the Minister's reasons (see in particular [24]-[49] and [52]-[54]) that the Minister did have regard to and give weight to the so-called countervailing considerations. He found, however, that the "strong countervailing considerations" did not outweigh the risk of serious harm to the Australian community (at [54]). Whilst reasonable minds might differ about the appropriate weight to be given to these considerations, which pulled in opposite directions, it was at the very least open to the Minister to arrive at the conclusion that he did. There was an evident and intelligible justification for the Minister's decision, even though the primary judge may not have agreed with it. 102 Fourth, whilst the primary judge was plainly of the view that, in all the circumstances, the cancellation of Mr Stretton's visa was in excess of what was necessary to protect the Australian public, it is equally clear that reasonable minds might differ in relation to the difficult decision that had to be made by the Minister. It was at the very least open to the Minister to weigh up the competing considerations and form the view that the risk to the Australian public of not cancelling Mr Stretton's visa outweighed the hardship to Mr Stretton and members of his family that would flow from the cancellation. 103 The reasoning underpinning the primary judge's conclusion of legal unreasonableness was accordingly flawed. With the greatest respect to the primary judge, it appears that his Honour effectively concluded that, because he did not consider cancellation to be a reasonable or proportionate response, the Minister's contrary conclusion must be legally unreasonable. His Honour effectively remade the decision, which the Parliament vested in the Minister, according to his Honour's own view of reasonableness. That was a misapplication of the concept of legal unreasonableness. The appeal must accordingly be allowed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.