Narayan v Minister for Immigration and Border Protection

1. The application be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LEE J: 1 This is a matter part-heard from March 2018. At that time, the applicant appeared in person on his application under s 476A of the Migration Act 1958 (Cth) (Act). When the matter originally came before me, the Minister's representative, correctly, accepted that although the argument was not expressed with any degree of precision, the applicant could fairly be taken as making a complaint about the manner in which the Minister dealt with certain representations relating to the applicant being in danger if he is sent back to Fiji. That raised an issue, expressed in general terms, as to whether the circumstances of this case were distinguishable from those dealt with in a decision of the Full Court, BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456. 2 During the course of oral submissions, it was brought to my attention that the Full Court was at that time reserved in an appeal which had sought to distinguish BCR16 or, in the alternative, challenge the correctness of BCR16: Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; (2018) 362 ALR 9. Having regard to Part VB of the Federal Court of Australia Act 1976 (Cth), and the need to facilitate the overarching purpose, it seemed to me appropriate that the matter be stood over until the Full Court delivered judgment in BHA17. As it turns out, it is clear that in this case (unlike BCR16), the Minister did consider the applicant's representations that there was "another reason" to revoke the cancellation decision, being the possibility of harm in Fiji. For reasons explained in FAF18 v Minister for Immigration and Border Protection [2018] FCA 1474 at [32]-[33], there is no substance in any ground of appeal based upon BCR16. 3 Unsurprisingly in these circumstances, after the applicant was granted a certificate to obtain pro bono legal representation, an amended originating application was filed in which no complaint or error of the nature identified in BCR16 was maintained. At the outset it is appropriate to record the Court's gratitude to counsel for appearing on a pro bono basis, and for the careful way in which he has sought to advance every argument that could be legitimately maintained on behalf of the applicant. 4 The sole ground that the applicant now advances is a contention that an error of law is disclosed because the reasons of the Minister were "legally unreasonable in both [their] logic and [their] consequences". 5 The relevant authorities need not be detailed. They are well-known and are not in dispute between the parties. Very recently in Singh v Minister for Home Affairs [2019] FCAFC 3, the Full Court (Reeves, O'Callaghan and Thawley JJ) explained at [61] that: The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power. 6 This is the guiding principle to be drawn from cases such as Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 and Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408. As Mr Burwood submitted, such a conclusion of legal unreasonableness might be drawn in a number of different circumstances. It could be, to adopt the categorisation in Singh at [61], if the decision: (1) is "illogical", though an inference of unreasonableness will not be supported merely because a decision appears to be irrational: SZVFW at [10] (Kiefel CJ); [82] (Nettle and Gordon JJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68] (Hayne, Kiefel and Bell JJ); (2) "lacks an evident and intelligible justification": Li at [76] (Hayne, Kiefel and Bell JJ); SZVFW at [10] (Kiefel CJ), [82] (Nettle and Gordon JJ); (3) is plainly unjust, arbitrary, capricious or lacking in common-sense: Stretton at [11] per (Allsop CJ, with whom Griffiths and Wigney JJ relevantly agreed at [87], [90]); Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 at [35] (Flick, Perry and Charlesworth JJ). 7 In the present case, counsel put particular emphasis on legal unreasonableness being evident in circumstances where the decision itself, and in particular, the impact of the decision was "plainly unjust". 8 In pointing to the particular unjustness in relation to the current decision, the applicant relied on an argument which had two aspects. The first is that there were a series of findings made by the Minister which did not involve any credibility issues and which pointed strongly in favour of revocation. The second aspect is the detriment visited upon the applicant's wife and stepchild (and also on the applicant himself). These adverse consequences are said to be so plain and unattended by doubt that they overwhelm any arguments pointing in the contrary direction. Moreover, to the extent that arguments against revocation exist, they are based on the Minister's prognostications, not on findings as to past events. 9 Counsel expanded upon these arguments in oral submissions by taking me through the Minister's decision at some length to explain the very significant impact of the decision on the applicant's stepdaughter and wife (both of whom are Australian citizens), and also on the applicant himself. 10 As to the stepdaughter, a minor at the time of the decision, the Minister found that it was in her best interests for the mandatory visa cancellation to be revoked: see [23]. In relation to the applicant's wife, a finding was made at [32] that a non-revocation decision would result in emotional, physical and financial hardship for both the applicant's wife and also her two daughters (including the stepdaughter). Detailed findings were also made as to the strength, nature and duration of ties of the applicant to Australia. 11 After taking me through the decision, the ultimate submission of Mr Burwood was that it demonstrated that "there were many pluses for revoking the cancellation, [but] … protection of the Australian community was a counterweight in the balance which was a heavier … weight than the pluses": at T12.10-12. It was submitted that when viewed as a whole, the sheer strength of the findings relating to the applicant's ties to his family and to Australia generally, means that one is left with a sense that the Minister's ultimate decision is plainly unjust. There is a need, as counsel submitted, to look at the decision overall. 12 Given the way in which the argument of the applicant was developed, there was, obviously enough, no attack on the way in which the Minister made findings which were said to favour a revocation decision. As to the factors pointing in the other direction, in considering whether the applicant posed a risk to the Australian community, it is clear from the reasons, that this analysis involved consideration of the evidence in some detail: see [58]-[68]. The Minister had regard to the applicant's "multiple offending that involved domestic violence" and noted that some of that offending occurred "while he was subject to good behaviour bonds" demonstrating a "lack of regard for judicial orders designed to assist him rehabilitate in the community whilst avoiding imprisonment": see [65]. After recognising that the evidence indicated that the applicant had made "some progress" towards rehabilitation: see [67], the Minister ultimately found at [68], that for the reasons he had canvassed, there was an "ongoing likelihood" of the applicant reoffending, and the Minister found that should that occur, there is a risk that he could cause "physical and/or psychological harm to his wife … or to other members of the Australian community". Counsel for the applicant sought to raise an argument in reply, that the findings against revocation were theoretical hypotheses, based upon findings of past events and behaviours. They were therefore not as strong as those findings in favour of revocation, which were based on material which was accepted as evidence with good credibility. However counsel did acknowledge, correctly, the risk of falling into merits review with such an argument. 13 The Full Court's decision in Stretton makes it clear that the correct approach for me to take, is to assess whether the Minister's decision "should be characterised as one which was not a reasonable and rational exercise of the power made in furtherance of the protection of the Australian community": see 8-9 [21]-[22] per Allsop CJ. 14 There is always a danger in these cases of slipping into merits review. Notwithstanding the efforts of counsel for the applicant to suggest that the decision is a plainly unjust (and hence legally unreasonable) one, there is no basis upon which I could form the view that the decision was not within the scope of the statutory authority conferred on the Minister. The Minister took into account all relevant claims raised, and on balance, decided that the danger to the community and potentially the applicant's wife, "outweighed the best interests of his minor stepdaughter as a primary consideration, and any other considerations as described": at [76]. On no view of it could it be said that the decision was one which no rational or logical decision-maker could have arrived at on the evidence. Although a different mind may have reached a different conclusion, as the authorities make plain, this is not enough and the application must be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.