Minister for Immigration & Citizenship v Toma

Background 7 The background to the Minister's decision is set out in the opening paragraphs of the reasons of the Tribunal (at [1] - [5], headings omitted): 'Mr Toma is a 44 year old former Iraqi refugee. He emigrated to New Zealand in 1992 and became a New Zealand citizen. Since August 1995, until the decision that is the subject of these proceedings, he held a Class TY Subclass 444 Special Category (Temporary) visa. It permitted his entry to, and his residence in, Australia. Fourteen years ago, on 5 September 1996, Mr Toma stabbed and killed one of his brothers-in-law in a fight at Fairfield, New South Wales. The fight was the culmination of hostility that arose out of a family argument. On 19 June 1998 Mr Toma was convicted of his brother-in-law's murder. He was sentenced to 18 years imprisonment, with a non-parole period of 13 years 6 months. Mr Toma appealed against both his conviction and sentence. Those appeals were dismissed on 22 November 1999. Mr Toma's earliest possible release date, contingent on being granted parole, was 4 March 2010. He is still in custody. If he is not granted parole, his full sentence will not expire until 4 September 2014. The presently relevant legal effect of Mr Toma's lengthy custodial sentence is that it attracted the operation of s 501(7) (c) of [the Act]. It means he has a criminal record for the purpose of s 501(6). Because of that substantial criminal record he does not pass the character test in s 501. Because he dose not pass the character test, s 501(2) of [the Act] authorises the Minister to cancel Mr Toma's visa. On 25 February 2010, the Minister did decide to cancel Mr Toma's visa.'

Legislative Scheme 8 Section 501(2) of the Act confers a discretionary power on the Minister to cancel a person's visa if the Minister reasonably suspects that the person does not pass the character test, and the person does not satisfy the Minister that the person passes that test. The parameters of the character test are set out in s 501(6) of the Act. 9 On 3 June 2009, the Minister issued Direction 41, which applies 'to decision-makers performing functions or exercising powers under s 501 of the Act to refuse to grant a visa to ... a person who does not satisfy the Minister that the person passes the character test': cl 4(1). Direction 41 was issued to facilitate the objective of the Act to regulate, in the national interest, the coming into and presence in Australia of non-citizens, in the interests of protecting the Australian community and, in particular, its more vulnerable members, from unacceptable risks of harm 'as a result of criminal activity or other serious conduct by non-citizens': cll 5.1 and 5.2(1). 10 Direction 41 comprises two Parts. Relevantly for present purposes, Pt B 'provides directions on the primary and other considerations that are relevant to determining whether it is appropriate in the specific circumstances of the case to exercise the discretion to refuse to grant or cancel the visa': Pt 2(2). Clause 9(1) of Direction 41 stipulates that a decision-maker must take the primary considerations into account, being the considerations set out in cl 10, in every case; the 'other considerations', which are set out in cl 11, should also be taken into account where they are relevant.

The Tribunal's decision 11 In reaching its decision, the Tribunal correctly observed that it was bound to comply with directions the Minister had made under s 499 of the Act, including Direction 41 (at [7]). Although it recognised that there were four primary considerations which must 'generally be given more weight than any other relevant consideration' (at [9]), the Tribunal devoted most of its attention to the first primary consideration, namely the protection of the Australian community from serious criminal or other conduct, particularly crimes involving violence (cl 10(1)(a)).

The First Primary Consideration: Protection of the Australian Community 12 Clause 10.1(2) of Direction 41 provides that the factors relevant to assessing the level of risk of harm to the community of the person's continued stay include: (a) the seriousness and nature of the relevant conduct; and (b) the risk that the conduct may be repeated. 13 In relation to the seriousness and nature of the conduct, cl 10.1.1(1) provides that crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Murder is given as the first example of offences and conduct that are considered serious: cl 10.1.1(2)(a). Clause 10.1.1(3) states that the sentence imposed for an offence is considered indicative of the seriousness of the offender's conduct against the community, and stipulates that due regard 'must' be given to the extent of the person's criminal record, including the number and nature of offences, the period between offences and the time elapsed since the most recent offence. 14 In relation to the risk that the conduct may be repeated, cl 10.1.2(1) emphasises a person's 'previous general conduct and total criminal history' as 'highly relevant to assessing any risk of re-offending': cl 10.1.2(1). The requirement to have regard to a person's previous general conduct is unconstrained as to any particular period, as is the person's 'total criminal history'. 15 Clause 10.1.2(2) then provides that the following factors are to be considered as particularly relevant to this assessment: '(a) a recent history of convictions, which should be considered as indicating an increased risk of re-offending; (b) evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional and psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and (c) evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.' 16 Although cl 10.1.2(2)(a) states that recent convictions should be considered to be indicative of increased risk, there is no corollary to the effect that the further a person's convictions are in the past, the lesser the degree of risk of that person committing further offences, although evidence of a person's rehabilitation may well have an impact in that regard. 17 The first respondent's criminal history in this case comprised his conviction for the murder of his brother-in-law, for which he received a head sentence of 18 years. The sentencing judge made an order for a non-parole period of thirteen and a half years, to date from 5 September 1996. Although his minimum term expired on 5 March 2010, the first respondent has not been granted parole. The Tribunal described the circumstances of the offence in [11] to [21] of its reasons. In brief, the first respondent fatally stabbed his brother-in-law in the backyard of his brother in-law's home; the first respondent lived in the house next door with his family, and had been called outside by the deceased to fight him. The fight that broke out between the two men was the culmination of a series of events which had occurred earlier in the evening, including the first respondent threatening to kill the deceased and attending public premises where he was present and threatening him. 18 The Tribunal acknowledged that nothing could be said about the circumstances in which the first respondent stabbed his brother-in-law that detracted from the seriousness of the consequences of his conduct (at [24]). Nonetheless, in considering the offence it had regard, inter alia, to the fact that: (a) The first respondent was 'reacting to his brother in-law's aggression' (at [24]), a description that the Minister says was contrary to the finding of the sentencing judge that: 'Both the deceased and Mr Toma were aggressors'; (b) although deliberate, the first respondent's crime was neither planned nor carried out against a vulnerable person (at [24]); and (c) the fight was the ultimate result of 'some kind of simmering family friction that had escalated into a very heated controversy' (at [25]). 19 By the time the Tribunal came to consider his application for review of the Minister's decision, the first respondent had been in custody for 14 years. Having spent that period of time in custody, the first respondent had no 'recent' convictions. He had, however, been cited during that period for a series of infringements of custodial conduct for which he was sanctioned, a number of which involved acts, or threats, of violence. The Tribunal listed these matters in [37] of its reasons as follows: '(a) 1998: one incident involving use of insulting language (b) 1999: two incidents involving the possession of unauthorized property (c) 2000: one incident of abusive language (d) 2001: three incidents of fighting or threatening behaviour (e) 2002: one incident of failing to comply with correctional Center [sic] routines; (f) 2003: one incident of abusive or threatening language and one incident involving the possession of a prohibited article (g) 2005: one incident of behaving in a threatening manner (for which he was reprimanded and cautioned) (h) 2006: an incident involving assault (i) 2008: one incident involving a fight (j) 2009: one incident involving a fight.'

The Fourth Primary Consideration: Best Interests of the Children 20 It is clear from the factors enumerated in cl 10.4.1(5) of Direction 41 that the consideration of the best interests of the child focuses upon the nature of the relationship between the person whose visa may be cancelled and the child, so as to gauge the impact of that person's departure from Australia on the child. Thus, for example, the following factors must be considered: (1) The nature of the relationship between the child and the person (cl 10.4.1(5)(a)); (2) the duration of the relationship, including the number of any separations and reason/s for the separation (cl 10.4.1(5)(b)); (3) the likely effect that any separation from the person would have 'on the child' (cl 10.4.1(5)(f)); (4) the existence of other persons who already fulfil a parental role in relation to the child (cl 10.4.1(5)(g)); and (5) the impact of the person's prior conduct and whether that conduct has, or has had, a negative or positive impact 'on the child' (cl 10.4.1(5)(h)). 21 The Tribunal noted the following: (1) The absence of any communication and contact between the first respondent and his children precluded 'any specific evidentiary basis for opining that their interests would be significantly affected by the cancellation of his visa and his return to New Zealand' (at [153]). (2) It did not seem likely that the first respondent would be released from custody before his son turned 18, which affected the emphasis that could properly be given to this consideration so far as he was concerned (at ([155]). (3) There was no evidentiary basis for finding that, if the first respondent was released and moved to Victoria, as he proposed to do, contact with his daughter would be much more regular than it was at present (at [156]). (4) In a note provided to the Tribunal, the children expressed a preference for the first respondent to remain in Australia (at [157]). (5) Neither of the children was likely to move to New Zealand to live with the first respondent (at [158]).

The First Primary Consideration 22 The Minister submitted that, in circumstances where the first respondent has been in custody for the last 14 years, his disciplinary breaches in custody were highly relevant as an indicator of his 'general conduct', even if they did not form part of his formal 'criminal history'. According to the Minister, the Tribunal was obliged to consider them not only individually but as a whole, and to assess whether they were indicative of a real and not remote risk of recidivism on the part of the first respondent. Its approach, which, according to the Minister, did not place the incidents it examined in the broader context of the incidents as a whole, demonstrates that the Tribunal did not perform that task and in failing to do so it fell into error: see Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 per Dixon J. The Minister put it this way: 'The exhortation in cl 10.1.2(1) to examine a person's entire history in the context of assessing the risk of recidivism, and the need to undertake that task at a global level, is consistent with the essentially predictive exercise that is involved in assessing risk of recidivism. One of the measures that will materially assist a decision-maker in undertaking that exercise is to consider past conduct, which may or may not demonstrate features that are consistent with a pattern or patterns of behaviour that one could reasonably expect may be repeated.' 23 According to the Minister, the nature of the Tribunal's error is most apparent in its treatment of incidents of fighting. In 2001, for example, the Tribunal noted that there were two incidents of fighting, which occurred in the context of other incidents of threatening behaviour: (1) The first fighting incident was in February 2001, for which the first respondent received three days in his cell. (2) On 1 August 2001, the first respondent was segregated for a period of fourteen days, after he threatened to cause people outside the prison to harm the deputy governor of the jail and his family. (3) The second incident of fighting occurred on 20 August 2001, less than a week after the segregation direction was lifted. (4) In October 2001, at Long Bay Prison Hospital, the first respondent, who was agitated because a sick inmate was sitting outside his cell window without a mask on and he wanted him moved, overturned a table, removed a mop from a bucket then being used by the domestic staff and hurled it in the direction of the 'smokers' yard. When he was instructed to calm down, the first respondent's response was that he would 'wreck this place'. He was subsequently 'assisted' to a vacant cell and locked in there to calm down. 24 All that the Tribunal recorded of the two incidents involving fighting was that they resulted in punishment of short periods of cell confinement, and did not involve serious injury (at [41]). Of greater concern to the Tribunal was the fact that during this period the first respondent had developed a paranoid thought disorder, with it referring to a report from a psychologist to the effect that he was very anxious to facilitate contact visits with his family (for which he required a prison transfer) and that he had been disrupted by recent changes to his cell arrangements (at [42]). The Tribunal's examination of the events of 2001 led it to conclude that the incidents occurred at a time when the first respondent was 'acutely vulnerable' (at [44]): 'He was distressed by a lack of family support, principally attributable to the distance between the prison at Lithgow and where his family lived in Sydney. His mental health was questionable and not being adequately addressed. His attempts to secure a more appropriate placement were rejected. Finally, he was placed at risk at Long Bay because of a controversy caused by other inmates. When all of these circumstances are taken together, the incidents that occurred in 2001 have little significance to a contemporary assessment of Mr Toma's risk of re-offending. Their principal relevance, to my mind, is the stark contrast they provide to considerably more favourable reports about Toma's conduct in the later years.' 25 On the basis of the particular circumstances it found to exist at the time of the incidents, the Tribunal considered them to stand in 'stark contrast' to more favourable reports that the first respondent received in subsequent years. According to the Minister, the Tribunal made no attempt, however, to examine these events in terms of the broader context of the first respondent's offending behaviour. As the Tribunal acknowledged, the circumstances surrounding these incidents marked the culmination of a number of things not going in the first respondent's favour. When viewed at that level, there was a strong similarity between the circumstances surrounding the incidents in 2001 and the first respondent's assault of his cell mate in 2006 because he wanted a one-out cell, the significance of which, in terms of risk of recidivism, was entirely overlooked. According to the Minister, the similarities were also overlooked when the Tribunal came, some 80 paragraphs later, to consider the 2006 offence. The Tribunal made the following observations of that incident (at [129]): 'Toma assaulted his cell mate. He was the aggressor, and he concedes as much. But again there is something of an explanation. It far from excuses Mr Toma's actions. But it does provide informative insight. Toma had apparently been used to being accommodated in a "one out" cell. After his return to Junee he had to share a cell. He objected and complained. Nothing was done. Mr Toma knew, having regard to prison procedures, something would happen about the accommodation if he assaulted his cell mate. So he did although without inflicting any significant injury. The incident cannot be condoned. But it is understandable, to a degree. That degree is greater when regard is had to the additional consideration that in the period from 19 December 2005 until December 2006 Mr Toma was classified as a "vulnerable inmate" who was subject to "care in placement" and had asked for protection from other inmates.' (Emphasis added.) 26 The Tribunal continued (at [130]): 'A completely satisfactory evaluation of the circumstances and significance of this incident cannot be carried out without an understanding of the nature of Mr Toma's personal safety concerns at the time, the behaviour of the other inmate, and the reasonableness of his request to have a 'one out' cell. But I note that, despite the sanction that was imposed (21 days off prison amenities) no "alert" was raised limiting Mr Toma's association with the inmate he had assaulted, nor was Mr Toma's security classification altered. Indeed within a month he was being recommended for transfer to Junee. Given the totality of the circumstances, and despite the scrutiny this incident properly deserves, I do not consider that it sheds any meaningful light on a proper current assessment of Mr Toma's risk of re-offending.' (Emphasis added.) 27 If examined on the basis that they could be indicative, on a cumulative basis, of an unacceptable risk of recidivism, the Minister submitted that this incident, and indeed other incidents forming part of his record of custodial conduct, demonstrated the reckless reactive behaviour that the Tribunal considered had been a contributing factor in the first respondent murdering his brother-in-law. According to the Minister, the first of the two fighting incidents in 2006 is a further example. It involved the first respondent hitting another inmate on the back of the head, but was dismissed by the Tribunal as 'a minor, probably instinctive reactive retaliation' and 'immaterial to proper consideration of the risk of Mr Toma re-offending' (at [128]). 28 Similarly, the Tribunal described the circumstances surrounding the first respondent's sanction for fighting in 2008 as clearly indicating that other inmates assaulted the first respondent first and that he simply retaliated, which was a realistic reaction in a prison environment (at [131]). However, according to the Minister, if considered against the background of the previous incidents, what occurred in 2008 was again symptomatic of the first respondent's tendency to respond violently to the (alleged) aggression of another person. 29 In response to the Minister's submission that the 2008 incident, and the further fight that occurred in 2009, bore this significance, the Tribunal stated (at [135]): 'There is some force in the Minister's contention. But it is not great. If one accepts that Mr Toma was first attacked in each of [the] 2008 and 2009 incidents, the Minister's hypothesis directing criticism towards Mr Toma's response is only justified, as it seems to me, if one can conclude that his response was disproportionate or unreasonable. Furthermore, it is necessary to take into account the prison environment. I am very disinclined to accept the proposition that it is realistic to expect a prisoner who has been aggressively attacked by another inmate (and in the case of the February 2008 incident, several other inmates) can just simply maintain a completely passive response. At one stage of his cross examination in these proceedings this was the basic effect of the proposition that was put to Mr Toma. If this was intended to convey anything more than the generality that prisoner [sic], no more than anyone else, can take upon themselves the task of retribution, it is a sound enough proposition. But if it was meant to convey that in the particular circumstances of these two incidents Mr Toma could and should simply have 'walked away', it is not a proposition that involves a realistic criterion for assessing Mr Toma's risk of re-offending.' (Emphasis added.) 30 The point of the Minister's submission was that in retaliating with aggression, the circumstances were not dissimilar to the fight which led to the first respondent murdering his brother-in-law, and with the first incident of fighting in 2001. Had the Tribunal viewed these instances in combination, and together with his conviction for murder and the other instances of aggression that occurred in the course of his custody, it should, or at least, could have reached a different conclusion as to the significance of the first respondent's correctional history in terms of his risk of re-offending. 31 The Minister submitted that, in order to perform the task required by the first primary consideration, the Tribunal needed to do more than assess each breach in turn. It needed to look at the totality of the pattern indicated thereby. That pattern may, if properly considered, have indicated that, despite what the Tribunal described as the first respondent's 'considerable behavioural, educational, mental health and English language improvements' (at [136]), the extent of a prisoner's rehabilitation being the second of the factors expressly mentioned in cl 10.1.2(2) of Direction 41, the first respondent had a propensity to react violently when provoked, and was prepared to use violence to advance his own interests. 32 As Crennan and Bell JJ observed recently in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [123], judicial review 'has commonly been relied on to set aside a discretionary decision "which is so unreasonable that no reasonable authority could ever have come to it" (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230) or decisions "which are unjust or otherwise inappropriate, but only when the purported exercise of power is excessive or otherwise unlawful"' (Attorney-General (NSW) v Quinn (1990) 170 CLR 1 at 35). Although that test has been described as 'stringent', the Minister contended that, in failing to consider the cumulative impact of the first respondent's offending history, including his custodial misconduct, the Tribunal's assessment of the need to protect the Australian community was fundamentally and irretrievably flawed. Its decision on the first primary consideration meets the description of a decision so unreasonable that no reasonable decision-maker could ever have come to it.

The Fourth Primary Consideration 33 The matters to which the Tribunal referred under this consideration (see [21] above) did not, according to the Minister, suggest a basis for giving the best interests of the children much weight in the first respondent's favour, and the Tribunal made no express finding in that regard in this part of its reasons. However, in the penultimate paragraph of its reasons, the Tribunal refers to the interests of 'his children' as a 'presently material primary consideration' (at [177]). In the remainder of that paragraph, the Tribunal expresses a concern not with the impact of the first respondent's departure on his children, but with the impact on the first respondent. According to the Minister, in doing so the Tribunal proceeded on the mistaken basis that consideration of the interests of the children involves consideration of the impact of the departure on the parent. The paragraphs of cl 10.4.1(5) of Direction 41 clearly demonstrate that this is not the case. The Tribunal's misapplication of the fourth primary consideration in exercising its discretion to set aside the Minister's decision constituted an error of law: see Avon Downs at 630, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [77].

The First Respondent's Submissions 34 The first respondent referred the Court to the grounds specified in the Minister's application for review claiming that the Tribunal 'erred': (1) By failing to consider the 'cumulative impact' of Mr Toma's criminal record when considered with the totality of his 'record of custodial misconduct', contrary to cl 10.1 of Direction 41: Grounds 2 and 3; (2) in the exercise of its discretion under s 501 of the Act: it was so unreasonable that no reasonable Tribunal could have so exercised it: Ground 6; (3) in its consideration of the best interests of Mr Toma's children, contrary to cl 10.4.1 of Direction 41: Grounds 4 and 5. 35 The first respondent further observed that the grounds referred to in [34(1)] above are expanded upon and expressed somewhat differently in the Minister's written submissions. There, the Minister submitted, or appeared to submit as follows: (1) The Tribunal was obliged to consider Mr Toma's disciplinary breaches 'not only individually but as a whole': (see [22] above); (2) the Tribunal was obliged to assess whether the breaches were indicative of a 'real and not remote risk of recidivism on the part of [Mr Toma]': (see [22] above); (3) (apparently) the Tribunal was obliged to 'place the incidents it examined in the broader context of the incidents as a whole': (see [22] above); (4) the Tribunal's 'approach' failed to do what, according to the proposition in (3), the Tribunal was obliged to do; and (5) by reason of (4), the Tribunal fell into error of the sort identified by Dixon J in Avon Downs. 36 In summary, the first respondent submitted as follows: (1) As to the grounds referred to in [34(1)] above: (i) The Minister's challenge was based on a flawed construction of Direction 41, and relied on glosses which are not warranted by the text of Direction 41; (ii) the Tribunal plainly did what it was required to do under Direction 41, and for that reason did not commit any jurisdictional error. (2) As to the ground referred to in [34(2)] above, the Tribunal's reasons did not disclose any irrationality, let alone irrationality which would render its decision liable to any constitutional writs. (3) As to the ground referred to in [34(3)] above, the Tribunal made no error in its consideration of the best interests of Mr Toma's children.

Construction of Direction 41 37 In my view, there is much to be said for the first respondent's submission that the Minister's challenge to the Tribunal's decision was based on an erroneous construction of Direction 41. 38 The Minister submitted that cl 10.1.2 requires the decision-maker to undertake a two-stage analysis. First, cl 10.1.2(1) exhorts the decision-maker to 'examine a person's entire history in the context of assessing the risk of recidivism'. Secondly, cl 10.1.2(2) 'then' requires the decision maker to place 'that assessment' (namely, the assessment carried out under cl 10.1.2(1)) in the context of 'other factors', being the factors identified in cl 10.1.2(2). 39 But cl 10.1.2 requires the Tribunal to consider the 'risk that the conduct may be repeated'. 40 Clause 10.1.2(l) provides that a person's 'previous general conduct' and 'total criminal history' are 'highly relevant' to 'assessing any risk of re-offending'. 41 Clause 10.1.2(2) identifies factors that are 'particularly relevant' to 'this assessment' (that is to say, in 'assessing any risk of re-offending'). Relevant to this application are the factors identified in subparas (a) and (b), namely: a 'recent history of convictions' which are indicative of 'an increased risk of re-offending'; and evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. 42 The task before a decision-maker (including the Tribunal) is one of 'assessing any risk of re-offending' having regard to the 'highly relevant' and 'particularly relevant' factors set out in subcll (1) and (2) of cl 10.1.2. In this way, there is but one process of assessment having regard to different factors. 43 Contrary to the Minister's submissions, I agree with the first respondent's submission that the task is not sequential whereby the decision-maker: first examines (under cl 10.1.2(1)) 'a person's entire history ... at a global level' which 'may or may not demonstrate features that are consistent with a pattern or patterns of behaviour that one could reasonably expect may be repeated'; and then considers (under cl 10.1.2(2)) factors that 'might potentially ameliorate or exacerbate' any risk. Such an approach is contrary to the plain words of Direction 41. It also leads to absurdity. It would require the decision-maker to make the assessment referred to in cl 10.1.2(1) without regard to the factors which cl 10.1.2(2) identifies as particularly relevant. 44 I also think there is force in the first respondent's submission that the Minister's challenge is also based on glosses which are not warranted by the text of Direction 41, and which consequently detract from the clarity of the task prescribed by Direction 41. 45 The glosses are as follows: (1) The Minister submitted that cl 10.1.2(1) requires the decision-maker to 'examine a person's entire history'. Those words do not appear in cl 10.1.2(1); it requires 'consideration' of the person's 'previous general conduct'. (2) The Minister submitted that the assessment required by cl 10.1.2 must be undertaken 'at a global level'. Those words do not appear in cl 10.1.2, and it is unclear what meaning such words are intended to convey. (3) The Minister submitted that the Tribunal was required to consider Mr Toma's disciplinary breaches 'not only individually but as a whole'. These words do not appear in the Direction. And it is unclear what they mean. (4) The Minister submitted that the Tribunal was obliged to assess whether the disciplinary breaches were indicative of a 'real and not remote risk of recidivism on the part of Mr Toma'. These words do not appear in cl 10.1.2. The task required by cl 10.1.2 is to assess the risk of re-offending.

What the Tribunal was obliged to do 46 In my view, the Tribunal plainly did what it was required to do under Direction 41, and for that reason did not commit any jurisdictional error. 47 The Tribunal correctly identified that the task before it involved an evaluation of the likelihood that Mr Toma will re-offend: [10]. 48 The Tribunal first considered the sentencing judge's remarks in which his Honour explicitly accepted the opinion of a forensic psychiatrist that the offence was 'very situationally specific' and that 'there is a low risk of further offending': [34] - [35]. 49 The Tribunal then considered the entirety of Mr Toma's custodial history and behaviour. This analysis of the available evidence can only be described as detailed and thorough. It occupies approximately 37 pages and 100 paragraphs: [36] - [136]. The Tribunal itself described its recitation of this history as 'long' but 'nevertheless abbreviated': [101]. 50 The fact that the Tribunal gave reasons is significant having regard to the nature of the 'error' which the Minister claimed the Tribunal had made, namely, the error identified by Dixon J in Avon Downs. As was explained recently by Gummow A-CJ and Kiefel J in SZMDS at [34] - [36], Avon Downs was concerned (as were many of the leading High Court authorities) with an administrative decision in a legislative regime in which there was no obligation to give reasons. Decisions in those circumstances 'presented an inscrutable face' ([34]) from which error could often only be inferred by surrounding circumstances. That is not this case. The Tribunal's reasons in this case thus 'obviate the necessity for a process of divination undertaken in the earlier authorities dealing with other legislation': [36]. 51 The Tribunal's consideration of Mr Toma's custodial history was based on evidence including security classifications, incident reports, and psychological assessments and reports. These are all types of evidence on which the Tribunal was entitled, if not obliged, to place 'greater weight' in its consideration of evidence of rehabilitation as a 'particularly relevant' factor in assessing any risk of Mr Toma re-offending. The weight to be given to such evidence is a matter for the Tribunal in the exercise of its fact-finding function. 52 The Tribunal was conscious of the 'good deal of care' it should exercise in drawing conclusions from an 'abbreviated history' and said at [101]: '... These reports provide the best and most comprehensive account of Mr Toma's behaviour and attitudes and the impression he gave not only to those best able to observe him, but also those with the most direct responsibility for his welfare. Their views have, since the early part of 2005, consistently been that he has been overwhelmingly a compliant and well behaved prisoner. This is particularly true of his behaviour and repute since mid 2006.' 53 The first respondent referred me to the Tribunal's reasons at [123] - [125] as demonstrating that the Tribunal properly approached the task required by cl 10.1.2 in 'assessing any risk of [Mr Toma] re-offending'. These paragraphs read: '123. I have partly addressed earlier in these reasons Mr Toma's prison discipline record. In the later section of these reasons, beginning in paragraph 126, I specifically consider the breaches involving fighting in the period from 2006 to 2009. In light of that consideration, it is my view that Mr Toma's prison discipline history does not provide a factual basis for concluding, or assisting in concluding, that Mr Toma has any significant risk of re-offending. Furthermore, I am struck by the variation in Mr Toma's LSI-R assessment results between 2007 and 2009 - particularly having regard to the essentially favourable reports and recommendations that he received throughout that period. I'm also struck by the subject matter of some of the assessment criteria in the LSI-R assessment (as suggested by the "detailed results" in the 5 November 2009 report). Mr Toma's English communication has substantially improved since the prison psychologist at Lithgow made the remarks to which I referred in paragraph 42 above. Nevertheless, his capacity to communicate, at least to communicate accurately, the nuanced information required to facilitate the kind of assessment indicated by the LSI-R result criteria is likely to be compromised. In that regard, I take into account the assessment of him at the Mannus Correctional Centre, to which I referred in paragraph 36 above. 124. In these circumstances, I do not consider that Mr Toma's risk of re-offending can probably be determined by attaching primary significance to his reported LSI-R test results. Whilst they are a factor to be taken into account, the assessment must also be influenced by a proper understanding of individual circumstances. In that regard, I am struck by the reality of the contrast between the explicit findings of the sentencing judge and the conclusion that the Minister now presses upon the Tribunal in these proceedings. The sentencing judge explicitly found that there was a low risk of Mr Toma re-offending. In reality the sentencing judge implicitly endorsed Dr Westmore's opinion (set out in paragraph 35 above) that there was a negligible risk of Mr Toma re-offending. Now, after 14 years of incarceration in a rehabilitative correctional services system, the Minister contends Mr Toma reflects a real and serious risk of re-offending. Since the sentencing judge's remarks made clear that deterrence was the predominant purpose of the lengthy sentence he imposed, it would seem an extraordinary result to arrive at the conclusion that Mr Toma now represents a more than negligible risk of re-offending. And in that regard, I note that the apparently considered view of the NSW Correctional Services system throughout the whole period from mid-2005 until mid-2009 was that, having assessed Mr Toma, his objectively determined risk of re-offending was too low to warrant even allowing him to undertake the VOTP program. 125. My own view is very much the same as that of the sentencing judge. Mr Toma's only conviction is for the 1996 murder. That occurred in a very specific, emotionally charged, confrontation that was overlaid with simmering family hostility. It is now 14 years later. Even in the stressful prison environment Mr Toma has achieved a reasonable level of English fluency, functional English literacy, improved his employment skills, impressed prison staff with his employment performance and, in the later years, consistently been reported as polite, respectful and compliant. Moreover, he has achieved all of this in an environment where he has been virtually isolated. He seldom has family visitors; his wife divorced him years ago and he almost never sees his children. The reality, as it seems to me, is that if Mr Toma was returned to the community in his present state, and went to live in Victoria with his supportive eldest brother, and his own son - as he intends to do, - he would represent no real risk of re-offending.' The first respondent submitted that the absence of any reference to these paragraphs in the Minister's submissions was conspicuous, particularly in circumstances where the Minister contended that the Tribunal erred by misapplying a mandatory and primary consideration of Direction 41. 54 The Minister contended that the Tribunal erred in its application of cl 10.1.2, particularly insofar as its assessment of particular incidents are concerned. These are the incidents in 2001, 2006, 2008 and 2009 (referred to in the Tribunal's reasons at [37] pars (d), (h) to (j) respectively). 55 The Tribunal considered these incidents at [126] - [136]. It did so having previously noted that it 'is desirable to consider Mr Toma's prison history in somewhat more detail than merely noting the number, and general nature, of his breaches of discipline': [40]. 56 The Minister accepted (at least implicitly, if not expressly) that the Tribunal was obliged to consider each incident individually. Although some faint criticism is occasionally made with respect to the Tribunal's analysis of these incidents, there is no basis for challenging the Tribunal's factual conclusions in relation to the surrounding circumstances of the incidents and Mr Toma's role and involvement in them. The Tribunal's findings were clearly open to it on the available material. The Minister did not contend otherwise. 57 However, the Minister said that the Tribunal should have considered these incidents 'at a global level' in 'a broader context of the incidents as a whole' (see [22] above). This 'broader context' is said to be 'the broader context of [Mr Toma's] offending behaviour' (see [25] above). It is said that the Tribunal 'needed to look at the totality of the pattern indicated thereby' (see [31] above). 58 The first respondent submitted that the Minister's approach was erroneous. I agree. 59 It seeks first to isolate certain incidents, divorced entirely from any evaluation or understanding of the surrounding circumstances, and then assert that the pattern of the combination of these incidents has some superficial resonance with the circumstances of Mr Toma's original conviction such that it shows that Mr Toma had 'a propensity to react violently when provoked, and was prepared to use violence to advance his own interests': (see [31] above). The final step in the Minister's approach for the purposes of assessing the risk of re-offending under cl 10.1.2 is then assumed (greater risk) but not explained (by reference, for example, to Mr Toma's previous general conduct as found). 60 Contrary to the Minister's submissions, the Tribunal did not fail to consider the totality of the incidents. What the Tribunal did was to place them properly in context. So much is tolerably plain from the following passage, at [136], of the Tribunal's reasons: 'My conclusion is that Mr Toma's prison discipline record does not, when properly understood, and evaluated against the background of his considerable behavioural, educational, mental health and English language improvements, convey any real risk of re-offending on his release. He has 14 breaches of prison discipline. There have been only four in the last seven years. One of those was five years ago and was an offence of threatening language. Thus, there have been three breaches of prison discipline in the last four years. In two of them Mr Toma was the victim of an assault and retaliated (or defended himself, depending on how one characterises a fight). The reality is that on one occasion in the last four years Mr Toma has initiated violence. That was when he was a protected prisoner, concerned for his own safety and assaulted his cell mate for the purpose of getting a "one out" cell. The assault did not involve any significant injury.' 61 However, this is not the end of the Tribunal's consideration of cl 10.1.2. 62 The Tribunal accepted the soundness of the general proposition that 'the results of [Mr Toma's] behaviour, the 1996 murder, and his prison discipline breaches, are patent' ([141]). The Tribunal then went on to say at [142] - [143]: '[142] ... But it only takes one back to a careful evaluation of the circumstances of those matters, and careful examination of Mr Toma's more recent behavioural history, particularly as reflected in the prison records and assessments since 2005. I have reviewed the sentencing judge's assessment of the circumstances of the 1996 murder, and made my own assessment in the light of the available information. I agree with the sentencing judge's assessment that the circumstances of the 1996 murder were very situationally specific. They were a combination of prolonged family resentment, and reaction to his brother-in-law's abusive and provocative aggression. My assessment of Mr Toma's prison history is that, since at least mid 2005, he has been an essentially compliant and co-operative prisoner. In the words of the assessment in his January 2009 Case Plan he "presented with a positive attitude and complies with his close case plan (and was a) low management risk". [143] I recognise the real practical differences between institutionalised custody and the potentially confronting exigencies of ordinary community life. I recognise also that Mr Toma, upon his release into the community would have to cope with the difficulties of the destruction of his family life and his lack of employment history. He would also, no doubt, encounter difficulties in coping with the formalities and discipline of any kind of structured release program (assuming that was even available to him). These considerations give rise to understandable apprehension about the success Mr Toma will have in re-establishing himself in the community. But Mr Toma has, in reality, met similar challenges in the past. He emigrated to New Zealand in 1992. That immigration involved dramatic changes of hemisphere, culture and language. He coped. He did so lawfully. In 1995 he moved to Australia. This too was a substantial change. He coped. He was employed. He behaved lawfully. There is good reason to believe that, but for the peculiarity of the family controversy, and his brother-in-law's aggression, the totality of his behaviour as a resident would have been both lawful and without risk to the Australian community. I consider it is both reasonable and proper to conclude that after his release from prison the overwhelming probability is that his future residence in the Australian community will be without material risk of re-offending.' 63 The first respondent respectfully submitted that these paragraphs are demonstrative of a wholly proper and correct approach to the assessment required by cl 10.1.2 of Direction 41. I agree. 64 I also agree with the first respondent's submission that, in substance, the Minister seeks, impermissibly, to convert the Tribunal's factual findings into a question of law. That is to say, the Minister wishes to engage this Court in impermissible merits review. The substance of the Minister's argument rises no higher than saying that the Tribunal 'should, or could have reached a different conclusion' (see [30] above). That very argument was put to the Tribunal and comprehensively rejected: [134] - [135]. That a differently constituted Tribunal may, or could, have reached a different conclusion is not to the point.

Criticism of the Tribunal's reasons at [24] 65 The first respondent submitted that the faint criticism (see [18(a)] above) of the Tribunal's reasons at [24] is unjustified. The Tribunal's comment that Mr Toma was 'reacting to his brother-in-law's aggression' is explicitly confined by the Tribunal to 'at least in leaving his home and going downstairs and being willing to fight'. Contrary to the Minister's submission, this is wholly consistent with the findings of Hulme J in sentencing Mr Toma who was 'satisfied that the deceased strongly insulted and challenged Mr Toma to fight'. His Honour's description that both Mr Toma and his brother-in-law were 'aggressors' was made in the context of his Honour's comment that it was 'unnecessary to attempt to resolve' the 'disagreement in the evidence' as to 'who struck the first blow'. 66 Be that as it may, there is no challenge to the Tribunal's conclusion, at [27], as follows: 'It is right to proceed on the basis that, at least for the circumstances that most immediately precipitated the fight, the brother-in-law was the protagonist. It is right to proceed on the basis that Mr Toma was prepared, at some risk of injury to himself, to inflict serious injury on his brother-in-law. It is not right to proceed on the basis that he set out deliberately to kill his brother-in-law.'

Unreasonableness 67 By Ground 6, the Minister contended that the Tribunal's decision was so unreasonable that no reasonable tribunal could have so exercised it. 68 If this ground is seriously maintained by the Minister, it is fair to say that it is only ever so faintly pressed (see [32] above), and even then more by way of assertion than analysis. 69 The Minister having failed to establish error as alleged in Grounds 2 and 3, this ground must also fail. This is because the Minister contended that the Tribunal's assessment was 'fundamentally and irretrievably flawed' because of the Tribunal's failure 'to consider the cumulative impact of [Mr Toma's] offending history, including his custodial conduct'. 70 For the reasons outlined above, this premise cannot be made good and Ground 6 must necessarily fail. 71 In any event, it cannot be said that this Tribunal's decision exhibits any of the characteristics of a decision that is so unreasonable that no reasonable tribunal could have so exercised it: SZMDS (at [125] - [130] per Crennan and Bell JJ). The Minister's submissions implicitly accepted as much when it is said that the Tribunal 'could have reached a different conclusion' (see [30] above) or that the evidence 'may ... have indicated' (see [31] above). That being so, Ground 6 fails in limine. As Crennan and Bell JJ said in SZMDS: '... If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.' (SZMDS at [131] per Crennan and Bell JJ; see also at [77] per Heydon J.)

The best interests of Mr Toma's children 72 By grounds 4 and 5, the Minister contended that the Tribunal erred in its consideration of the best interests of Mr Toma's children, under cl 10.4.1. 73 The Tribunal's analysis appears at [151] - [156] of its reasons and the Tribunal concludes, at [157] - [158], as follows: '[157 ... [T]he children have signed a note expressing their support for Mr Toma, and their wish that he be allowed to remain in Australia. This note has been written by Mr Toma's son, but is signed by both children. It most specifically expresses Mr Toma's son's "dream" to be able to live with him. But it conveys both of their preferences that he remain in Australia. [158] Both children have spent, in practical reality, all of their formative years in Australia. I would not regard either of the children as likely to go to live with Mr Toma in New Zealand. However, at least in Mr Toma's son's case, he would be free to do so if he chose to, in order to foster his relationship with his father.' 74 According to the Minister, the matters to which the Tribunal referred under this consideration (see [21] above) did not suggest a basis for giving the best interests of the children much weight in the first respondent's favour. The first respondent said that this submission is difficult, if not impossible to reconcile with the matters set out in the first paragraph of the question in [73] above. 75 The Minister contended that error is disclosed in the Tribunal's penultimate paragraph ([177]) of its reasons (see [33] above). The first respondent submitted that that contention cannot be made good when proper regard is had to that paragraph. 76 The Tribunal begins by noting the 'primary considerations', namely, Mr Toma's 'negligible risk of re-offending' and 'the best interests of his children'. According to the first respondent, the reference to the 'best interests of his children' can only sensibly refer back to the Tribunal's earlier findings, particularly that concerning the express wishes of the children: [157]. I think that must be right. The Tribunal noted that if it had concluded that Mr Toma had a significant risk of re-offending, then the interests of the children would not have warranted being accorded sufficient weight to overcome the significance of such a conclusion. 77 According to the first respondent, contrary to the Minister's submission (at [33] above), the Tribunal does not then proceed erroneously on the 'mistaken basis' that consideration of the bests interests of the children 'involves consideration of the impact of the departure on the parent'. 78 What the Tribunal does say is that the hardship on Mr Toma of the cancellation of his visa (involving loss of contact with both his brother and son) is a 'persuasive consideration' in the exercise of the Tribunal's discretion, in circumstances where the Tribunal has concluded that Mr Toma has a negligible risk of re-offending. This passage does not, according to the first respondent, detract in any way from the Tribunal's earlier consideration of the best interests of Mr Toma's children, in respect of which no error is alleged. Again, although not without some limitation, I think this must be right. The Minister does not contend that the passage otherwise reveals any error. 79 According to the first respondent, the construction of this paragraph for which the Minister contended did not reflect a fair reading of the Tribunal's reasons as a whole but instead was reflective of analysis 'with an eye keenly attuned to the perception of error': Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 80 In any event, it seems strange that the Minister would seek to set aside a Tribunal decision in favour of Mr Toma on the basis of an alleged error in the Tribunal's consideration of the best interests of Mr Toma's children in circumstances where the Tribunal's decision gives effect to the express wish of his children. 81 If, contrary to the above, the Court were to find that the Tribunal erred only in this respect, then the first respondent submitted that the Court would decline, in the exercise of its discretion, to grant the relief claimed. This was because it would be futile to remit the application for review to the Tribunal on this basis because the result in this respect would inevitably be the same. This is because, as the Minister must accept, both of Mr Toma's children 'have signed a note expressing their support for Mr Toma, and their wish that he be allowed to remain in Australia': [157].

Conclusions and orders 82 I agree with the first respondent's submission that none of the grounds are made out. There is no discernible error in the manner in which the Tribunal reached its decision. The Tribunal's decision is accordingly a privative clause decision within the meaning of s 474(1) of the Act. The application must be dismissed with costs. I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.