THE ARGUMENTS ADVANCED FOR MR RENZULLO
35 I turn then to the three substantive arguments underlying the prospective ground of appeal (set out above at [3]) which have been treated together in both Mr Renzullo's submissions and the Assistant Minister's submissions in response. This is, I think, also an appropriate approach as at least some of the grounds may not afford a singular ground of review if considered in isolation.
36 Mr Renzullo particularly emphasises that the single conviction for a sexual offence does not manifest a pattern of reoffending in relation to such offences. While he has been incarcerated at Casuarina Prison he has received positive reports about his behaviour in prison employment and has undertaken rehabilitative and education programs in prison. At no point in any of the exchanges leading up to the Decision did Mr Renzullo have the benefit of any professional assistance for the purpose of making submissions as to why the Decision should not be made. (Although, I note that submissions were sent on behalf of Mr Renzullo in relation to the prospective cancellation of his visa by Gunning Young, Barristers & Solicitors dated 16 June 2016.) Senior counsel for Mr Renzullo stresses, not only was the single offence to which the Assistant Minister points not a pattern of repeated conduct, but it also preceded the warning letter. Furthermore, any offence which post-dated the warning letter could not possibly be such as to warrant the exercise of a discretion so disproportionately adverse to him having regard to the circumstances as a whole.
37 In addition to the factors identified above, Mr Renzullo points to the fact that he has a 20 year old daughter, parents, a brother and a sister in Australia, as well as more distant relatives. He stresses that both of his parents are elderly and have health problems. In addition to his mother's dementia, his father also suffers from high blood pressure, depression, anxiety and heart problems. Mr Renzullo has no family support or close ties to Italy and it is common ground that he speaks only limited Italian. Mr Renzullo has no assets and, I infer on the basis of information from the Italian Consul in Perth, he would not be entitled to any welfare or social security payments if he was deported to Italy.
38 Mr Renzullo contends that the reasons given by the Assistant Minister were so illogical or irrational, and the result so disproportionate and unreasonable an outcome, that the Decision should be quashed as being vitiated by jurisdictional error. The arguments on behalf of Mr Renzullo necessarily call into consideration the High Court decision of Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, in which these concepts were relatively recently examined. Mr Renzullo relies upon the observations of the Chief Justice (at [30]) where his Honour said (footnotes omitted):
The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, "may have no particular legal consequence". As Professor Galligan wrote:
"The general point is that the canons of rational action constitute constraints on discretionary decisions, but they are in the nature of threshold constraints above which there remains room for official judgment and choice both as to substantive and procedural matters. In other words, within the bounds of such constraints, different modes of decision-making may be employed."
A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. It is not necessary for present purposes to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts. Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves. That approach is an application of the principles discussed above and within the limitations they would impose on curial review of administrative discretions.
(emphasis added)
39 In NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, Allsop CJ and Katzmann J stated (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 …
(citations omitted).
Although the comments in NBMZ were made in relation to the Minister's discretion under s 501(1) of the Act, they apply equally to the discretion under s 501(2): Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 (Stretton FC) per Griffiths J (at [66]). See also Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 per Allsop CJ, Griffiths and Wigney JJ (at [16]).
40 Mr Renzullo also relies on McCloy v New South Wales (2015) 325 ALR 15 (at [3]) in relation to the argument that the Decision was disproportionate, as a case in which the role of 'proportionality' in determining whether an administrative act is within power was recently affirmed. In my view, McCloy is not particularly helpful in this instance because McCloy did not involve the judicial review of ministerial administrative action. Rather, McCloy concerned the examination of State legislation in which issues of constitutionality arose.
41 Central to any grounds of judicial review alleging that an administrative decision is unreasonable, irrational or disproportionate is identification of the object and purpose for which the statutory power was created. In NBMZ, Allsop CJ and Katzmann J said (at [8]):
… 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) 74 CLR 492 at 505 (per Dixon J). …
42 For present purposes, the power to cancel the visa of a person with a 'substantial criminal record' under s 501(2) of the Act exists to eliminate or reduce risk of future harm to the Australian community in the manner identified by Rangiah J, North J agreeing, in Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367 (see particularly [48]-[51], [56]-[60], [66]).
43 In relation to the function and role (if any) of reasons for present purposes, the relevant principles were recently distilled by the Full Court in Eden (at 64]) as follows:
… [W]here reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable.
(citations omitted)
44 Because reasons were given by the Assistant Minister in this case, it is possible to examine the process of reasoning. Although, in the words of Hayne, Kiefel and Bell JJ in Li (at [76]), even where reasons have been provided in respect of the decision under review 'it may nevertheless not be possible for a court to comprehend how the decision was arrived at.' The plurality further said that '[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.' Can it be said in this case that it is not possible to comprehend how the decision was arrived at or that it lacks an evident and intelligible justification? Was it a disproportionate exercise of an administrative discretion?
45 To come back to the emphasised words in Li, it is important to recall the actual decision under review when understanding the context in which these now oft-cited remarks were made. The decision concerned a refusal to grant what was effectively an adjournment in circumstances where it was clear the request was reasonably based and not a delaying tactic. There was no apparent attempt to balance competing considerations. The Migration Review Tribunal (MRT) made a decision adverse to Ms Li, who had been training and obtaining work experience as a cook and had been refused a Skilled-Independent Overseas Student (Residence) (Class DD) visa. As was known to the MRT, when it made its decision, Ms Li was awaiting the outcome of a requested review by Trades Recognition Australia (TRA) of her unsuccessful (second) application to that authority for a skills assessment. A favourable skills assessment was a necessary condition of the grant of the type of visa she sought by Ms Li. The MRT did not accede to a request from the first respondent's migration agent to defer its determination pending TRA's decision. (Ultimately she did receive a favourable assessment and, while this was not directly relevant to the court's decision, there was at least some information from her agent before the MRT when it made its decision that the review was likely to be favourable and the request for review was not therefore a delaying tactic based on conjecture).
46 Mr Renzullo's central argument is that once-only, out of character sexual offences arising in unusual circumstances of family disputation could not rationally or reasonably (even together with other but quite unrelated convictions) have caused the 'fear' of risk of unacceptable harm to the Australian community that gave rise to such a disproportionate decision.
47 As set out above, the clear statutory object is to prevent a risk of future harm to the Australian community. Mr Renzullo argues that the focus of attention, therefore, needs to be on:
(1) whether there is illogicality, irrationality or unreasonableness in the process of reasoning assessing the likelihood of future harm; or
(2) whether the solution adopted is one which 'is taking a sledgehammer to crack a nut'.
That is, that the Decision is such that it is irrational and unreasonable by exceeding what is necessary for the purpose it serves.
48 Mr Renzullo complains that the Assistant Minister, in considering his criminal history (at [8]-[13] of her reasons), adopted a formula of describing the facts comprising offences of which he was convicted and expressing a conclusion that the offending was 'serious' or 'very serious'. It is argued that such a conclusion or conclusions did not relieve the Assistant Minister from considering the risk of harm to the Australian community objectively, at least in a relative sense by reference to the class of offences committed. There was no analysis in the reasons, it is said, beyond recounting the magnitude of the sentences imposed and even that was done without reference to how those sentences compared to the possible maxima. The Assistant Minister submits in response, and I accept that:
the 'objective seriousness' of a visa holder's offending is not a mandatory relevant consideration;
the discretion to cancel a visa pursuant to s 501(2) of the Act is unfettered in its terms;
there is nothing in the subject matter, scope and purpose of the Act which would found an implication that the 'objective seriousness' of the offence is something over and above the Assistant Minister's own evaluation of the risk presented by the visa holder; and
the (Assistant) Minister is bound to have regard to the objective facts in every case.
49 Mr Renzullo relied on Stretton v Minister for Immigration and Border Protection (No 2) (2015) 231 FCR 36 (at [57]) (at first instance) in support of this contention and his argument generally. However, I note that this decision was recently reversed on appeal by the Full Court in Stretton FC. Chief Justice Allsop said (at [21]) that the approach of the primary judge seemed to be brought about by a view of the need for the assessment to be objectively unreasonable, but that view did not also carry with it the authority for the Court to reach its own view of what is reasonable and, or what is necessary, and then, without more, supplant the view of the Minister. His Honour further said (at [21]):
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.
50 In separate reasons in Stretton FC, Justice Griffiths sated (at [71]):
… [T]he 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.
51 Justice Griffiths continued (at [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.
52 I note that special leave has been sought to appeal the Full Court decision in Stretton FC, but I am bound by the Full Court decision. I am also bound by the approach on this topic taken in Moana and Brown v Minister for Immigration and Border Protection [2015] FCAFC 141, that, in considering the risk of harm to the Australian community, there is no prescribed legislative or other duty to evaluate that risk in any particular way or to ascribe any particular characterisation to the quality of the risk, other than by applying the words of the statute.
53 But, in any event, in the present case, I do not consider that the approach taken to the offences following the issuing of the warning was erroneous. To the contrary, I think it is inappropriate in the context of Mr Renzullo's criminal history as a whole to construe such offences as low grade or low level offences, if those descriptors are thought to preclude the offences being relevant to the assessment of risk. They are clearly, in my view, capable of being relevant to the risk assessment reached.
54 Furthermore, the Minister's discretion to cancel a visa under s 501(2) of the Act is, and is intended to be, broad. That is a relevant consideration in assessing whether a decision under s 501(2) of the Act is unreasonable in a legal sense: Stretton FC per Griffiths J (at [69]-[70]); Eden per Allsop CJ, Griffiths and Wigney JJ (at [19]).
55 With respect to the 21 March 2005 convictions, being those discussed by the Assistant Minister at [8]-[10] of her reasons, she noted (at [16]) that the judge sentencing him for drug offences in 2011:
… was of the view that apart from Mr Renzullo's 2005 convictions which arose out of circumstances relating to the breakdown of his marriage, Mr Renzullo appeared to have substantially overcome the serious offending of his youth.
56 Mr Renzullo stresses the sentencing judge's observations about the 21 March 2005 convictions arising out of the breakdown of his marriage. Mr Renzullo also stresses the conclusion by the Assistant Minister that 'much of his later offending relates to his substance abuse' (at [14]), a conclusion which was repeated (at [24]). Having reached those conclusions, Mr Renzullo argues it was illogical for the Assistant Minister to then state (at [24]) that:
… Should Mr Renzullo re-offend in a similar manner, particularly with crimes involving sexual offending against children or threats of violence, [the Assistant Minister was] of the view that it could result in physical or psychological harm to the victims, and that this harm has the potential to be substantial.
(emphasis added)
57 Mr Renzullo submits that there was no evidence to suggest that there was any risk of Mr Renzullo engaging in the conduct for which he was convicted in 2005 in the future, and that such a conclusion was irrational and consistent with the observations and findings already made by the Assistant Minister (at [14], [16] and [24]). The process of logic and reasoning therefore, Mr Renzullo submits, is internally inconsistent and illogical, falling within the reviewable category of jurisdictional error. Furthermore, Mr Renzullo argues in relation to risk that, in respect of his history of drug offending, the Assistant Minister (at [18]) observed:
In 2013, the court noted that Mr Renzullo committed his most recent drug offences while on a suspended sentence during which he had responded positively to supervision and program requirements. Mr Renzullo had undertaken psychological counselling and substance abuse counselling, while being involved in the manufacture and use of illegal drugs.
58 Additionally, Mr Renzullo points to the Assistant Minister noting that a prison conduct report in relation to his incarceration was also positive about his behaviour and that he had no internal breaches at the time the report was prepared in July 2013 (at [20]). Rather, he had very positive reports about his employment in prison and was scheduled to undertake a cognitive skills program in addition to a high intensity substance abuse program. She noted that Mr Renzullo had advised that he completed these programs and she had taken that into account. It was also noted (at [21]) that Mr Renzullo personally believed he had curbed his offending and was optimistic about his prospects of rehabilitation. The Assistant Minister stated (at [24]): 'I also find that despite past program attendance, Mr Renzullo has continued to re-offend and there remains a risk that he will do so again.' This, it is argued for Mr Renzullo, is illogical because all of the evidence of Mr Renzullo's conduct since 2005, which was summarised by the Assistant Minister (from [18]-[21]), pointed the other way. There was, therefore, no logical basis for the Assistant Minister to conclude that there was any potential for substantial harm from future offending in the submission advanced on behalf of Mr Renzullo.
59 In addition to this, it was argued that there were no express findings in the reasons for the decision about the likelihood of Mr Renzullo reoffending, but only blanket statements that 'there remains a risk' which does not reflect the engagement in any rational assessment of the risk of future harm.
60 In summary, Mr Renzullo contends that the only logical conclusion on a proper analysis of his offending, including examination of the objective seriousness of the offences concerned in assessing the risk of future harm, indicates that:
Mr Renzullo had a history of low level offending from a young age due to behavioural problems;
in 2005, he was convicted for a series of sexual offences against a single victim who was his stepdaughter, and for violent threats against the victim's brother and mother, being his ex-wife. Those offences arose out of circumstances relating to the breakdown of his marriage;
since then, his offending had related to substance abuse and his offending had decreased in frequency; and
Mr Renzullo had undertaken psychological counselling and substance abuse counselling and had received positive reports of his behaviour whilst incarcerated.
Therefore, Mr Renzullo says that while there remains some risk that Mr Renzullo would commit further offences, such risk would relate to potential drug offences only, not to violent or sexual offences.
61 There are other balancing factors in favour of Mr Renzullo which he stresses the Assistant Minister must have ignored or assessed on a basis which was irrational and unreasonable in arriving at the Decision, including:
Mr Renzullo has supportive family members in Australia;
upon release Mr Renzullo plans to live with his parents, which would remove him from past associates and ties to his previous life;
Mr Renzullo was only two years old when he began living in Australia and he had spent all his life in Australia;
all of Mr Renzullo's family live in Australia and he has strong family and social ties to the Australian community;
Mr Renzullo has contributed to the Australian community through employment;
Mr Renzullo's mother suffers from dementia;
Mr Renzullo's father suffers from high blood pressure, depression, anxiety and heart problems, in addition to being stressed as a result of his wife's condition;
Mr Renzullo intends to live with his parents after release and help his father care for his mother;
Mr Renzullo's parents will be unable to travel to Italy to visit him;
cancellation of Mr Renzullo's visa would result in emotional and practical hardship for his parents and could result in further deterioration of his parents' health;
cancellation of Mr Renzullo's visa would cause significant distress to his sister, his daughter and brother;
Mr Renzullo has no family in Italy who could support him;
Mr Renzullo does not speak Italian and removal to Italy will be very difficult for him; and
Mr Renzullo's health problems and limited Italian language skills may make it difficult for him to find any employment in Italy and will consequently increase the hardship he will experience.
62 There is no foundation for an argument that these matters were totally ignored. It is apparent in analysis of the reasons that they were examined and weighed in the balance.
63 In Te Puke v Minister for Immigration and Border Protection (2015) 230 FCR 499, Gbojueh v Minister for Immigration and Border Protection [2015] FCAFC 43 and Mrayhej v Minister for Immigration and Border Protection (No 2) [2015] FCA 691, statements were made to the general effect that the Minister was entitled to come to the view that the relevant criminal offending was serious. In each of those cases there were aspects of the sentencing judges' remarks which might have supported a more lenient view of the offending than the view adopted by the Minister. Those authorities emphasise that the assessment of the material was a matter for the Minister. Thus, for instance in Mrayhej Foster J stated (at [56]):
The Minister took the view that the sex offences were "very serious". The Minister was not bound to regard those offences as at the bottom end of the scale of sexual offences merely because the sentencing judge had described them that way.
64 Ultimately, it was a weighing exercise between clearly identified and openly disclosed factors. While it might be that qualitative descriptions, such as 'serious' or 'very serious', or notions of risk are topics on which views may differ, even widely differ, the process of reasoning of the Assistant Minister clearly demonstrated a weighing of different factors, both for and against the question of cancellation. The weight to be attached to such considerations is very much within the domain of the administrative decision-maker. Even if a court takes a different view as to the weight to be given to various factors, that does not render the Decision unreasonable in the Li sense.
65 As to disproportionality, while it is true that the consequences of cancellation are severe, that must inherently be so in most cancellations. It is a power to be used only in express (and fairly exceptional) circumstances, as described in the Act. The link between the circumstances and the power exercised in this case is manifest. While there is a challenge by Mr Renzullo to the logic giving rise to the risk to the public, that is a conclusion reached on weighing various factors on which reasonable minds may differ. There is no disproportionality in the present circumstances in the sense referred to by French CJ in Li, in which his Honour described administrative action which 'on any view' exceeded what was necessary for the purpose it served.
66 To the extent Mr Renzullo's submissions may be taken as contending that the Assistant Minister simply resolved that any offence after the warning was given was sufficient to give rise to the risk, I do not accept that this is a fair assessment of the analysis in the reasons. It was open for the Assistant Minister to conclude that the offences which occurred after the warning was given demonstrated that the prospective risk to which the warning letter was directed had not been eliminated. The remarks in [24] of the reasons should also be considered in light of the Assistant Minister's finding at [15] that Mr Renzullo had denied his sexual offending, and as a result, was considered unsuitable to undertake sex offender treatment in 2005, together with Mr Renzullo's refusal to attend supportive counselling at the time.
67 Mr Renzullo complains of the Assistant Minister's failure to have regard or adequate regard to the sentencing remarks made on the occasions of his most recent convictions from which it would have been apparent that his primary object in manufacturing the methylamphetamine was for his own use, rather than for commercial supply. It was described as a 'home brew operation' by the sentencing judge. While the sentencing judge in relation to the methylamphetamine offences may have described it as a 'home brew operation', his Honour also described it as a 'very serious offence', 'punishable by imprisonment because of the inherent dangers and because of the dangers of methylamphetamine and the consequences, the harmful consequences of that drug'.
68 These offences were, of course, committed after the warning had been given and at a time when Mr Renzullo was still subject to a suspended term of imprisonment. Certainly it is true that personal use may be a lesser crime than selling such a drug. However, the real question is whether the personal use, taken against the background of all the other information, including the convictions, was relevant to the existence of the statutory risk. The degree of criminality is one thing, but the perception as to the risk posed by the conduct is the more pertinent question. That was the issue addressed by the Assistant Minister.