Sach v Minister for Home Affairs

Assistant Minister's Decision 22 The Assistant Minister's decision not to revoke was made under s 501CA(4) of the Act, which provides: (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. 23 In his reasons for decision dated 14 February 2018, the Assistant Minister noted that the applicant did not dispute the information in his National Police Certificate regarding his criminal convictions and sentences, or that he did not pass the character test. Accordingly, the Assistant Minister's decision focussed upon whether there was "another reason" why the delegate's decision should be revoked pursuant to s 501CA(4)(b)(ii) of the Act. 24 The Assistant Minister summarised the representations made by the applicant and the documents he submitted as follows: he had deep remorse for his actions which lead to his imprisonment; he would never harm his partner, although he admitted the relationship was sometimes "heated"; he planned to marry his partner upon release; he planned to support his adult son as he undergoes gender reassignment; he wished to continue to support his step children; he had a number of mental illnesses along with epilepsy; he had good support networks established with professionals who were aware of his medical history; if he was to return to the UK he would not have the same assistance as he has in Australia; and he has no family support or employment prospects in the UK and would likely be living on the streets. 25 In making his decision, the Assistant Minister referred to: the strength, nature and duration of the applicant's ties to Australia; the extent of impediments should the applicant be removed from Australia; and the protection of the Australian community. 26 In relation to the applicant's strength, nature and duration of ties to Australia, the Assistant Minister noted that the applicant had resided in Australia for, at the time of the decision, some 43 years following his arrival as a young child. Given that the applicant has lived in Australia from a very young age and for most of his life, the Assistant Minister held the view that the Australian community may afford him a higher tolerance of criminal conduct. 27 The Assistant Minister stated that he had considered the effect of non-revocation of the delegate's decision on the applicant's immediate family and friends in Australia and accepted that they would experience emotional and practical hardships if the applicant was removed from the country. It was also acknowledged that the applicant had made a positive contribution to the community during his time in Australia. 28 The Assistant Minister's reasoning regarding the extent of impediments if the applicant was removed from Australia was as follows: 25. In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the impediments that Mr SACH will face if removed from Australia to his home country of the United Kingdom (UK) in establishing himself an maintaining basic living standards. 26. Mr SACH is 50 years of age and suffers from epilepsy, bi-polar, depression and paranoid schizophrenia. Mr SACH states he would become 'suicidal' stating he 'would not get on the plane' and would 'take any action possible' to prevent deportation. 27. In support of his request for revocation Mr SACH submitted a report dated 17 February 2017 from a Medical Officer at Acacia Prison, regarding his medical condition and his fitness to fly. The Medical Officer states that Mr SACH has refractory epilepsy, was a poor candidate to fly, and has no carers in the UK, thus placing him in a complex situation to be able to manage himself, on his own, with recurrent uncontrolled seizures. He was of the view that a specialist opinion would be required to determine his fitness for travel. I have also taken into consideration the departmental assessment of the primary health nurse from International Health and Medical Services (IHMS) who has assessed that Mr SACH is not fit to travel. 28. I am aware of the report by International Health and Medical Services (IHMS) which states that Mr SACH has the following physical and mental health conditions: • Hypertension: Mr SACH has been prescribed antihypertensive medication which has improved his health issue. His blood pressure continues to be monitored by IHMS. • Obesity, Hypercholesterolemia and Elevated Blood Glucose Level: Mr SACH is reported to be 'Obese', and has been prescribed medication to reduce his cholesterol, he has also been advised to modify his diet. • Mildly Enlarged liver, Fatty Liver, Epigastric Pain: Mr SACH has been prescribed anti-reflux medication to help elevate his symptoms. • Asthma: Mr SACH has prescribed inhalers to manage his symptoms, has been encouraged to cease smoking and has commenced nicotine replacement patches. • Atypical Seizure Disorder: Mr SACH suffered a head injury when he was 16 years old, since then he has experienced seizures and has been treated with antiepileptic medication. In detention, Mr SACH has experienced multiple episodes of atypical seizure activity, with no serious injuries reported. He advised IHMS in May 2017 that he often experiences one to two seizures per day lasting no more than four minutes. Mr SACH has been referred to a neurologist for further investigations for his ongoing seizure activity. • Sleep issues: Mr SACH has been referred to a Respiratory/Sleep Physician to investigate his sleep issues and determine whether he has Obstructive Sleep Apnoea. • HSV Lesions (Genital Herpes): Mr SACH receives treatment to manage the severity and frequency of his symptoms as there is no cure. • Rectal Bleeding: Mr SACH has been prescribed an ointment to relieve his symptoms. • Depression, Cluster B Personality Disorder: Mr SACH has been diagnosed with Depression and has engaged with the Mental Health Team and IHMS GPs for strategies to cope with stress, low mood, inability to see his partner and uncertainty regarding his immigration status. Mr SACH reported that he sometimes thinks of killing himself to be rid of his seizure activity, however he would not follow through with this due to his family and partner. Mr SACH is prescribed psychotropic medication, and referred to 'Life Resolutions' for additional psychological support. He is aware of the self-referral process for mental health. 29. I acknowledge that Mr SACH has the following treatments: Ongoing appointments with Life Resolutions, ongoing GP follow-up for physical health issues and ongoing Neurology reviews, including pending EEG (test to detect electrical activity in the brain) and pending sleep study and I have taken this into consideration. 30. I have taken into consideration Mr SACH's concern for his welfare should he return to the UK. He states that in Perth he has professionals who are aware of his medical history and with whom he can easily re-engage upon his release. He believes that the appropriate support networks would not be available to him in the UK, as he does not have contact with any extended family in the UK apart from minimal contact with two cousins via Facebook, believing he will end up homeless. He also states that he would have limited employment prospects as he has been on the disability pension for a long time and will require care. 31. I have considered [PM]'s submission that Mr SACH has no friends or family in England and has never returned there for a holiday or other reason. 32. I have also taken into consideration the submission by [MS]. He submits his brother has lived in Australia for almost his entire life and returning to England 'would be as foreign to him as if he was deported to any country in the world', confirming that his brother would have no social network or means of support to survive. He also submits that his brother was diagnosed with epilepsy as a teenager and that, 'if he was deported, he would have to re-establish repour [sic] with medical staff looking after his condition', advising that the severity of his medical condition would make air travel very difficult. 33. Notwithstanding these concerns, the United Kingdom is culturally and linguistically similar to Australia and has comparable standards of health care, education, income and social welfare support. Mr SACH will have equal access or similar access to these as do other nationals of the United Kingdom. Nevertheless, given the presence of his immediate family in Australia, the absence of close family support in the United Kingdom, the length of time he has spent in Australia and his mental and physical health issues and the time it will take to establish linkages into the UK health network and establish rapport with various health practitioners, I find that non-revocation of the cancellation decision will involve substantial hardship for him. 34. In considering Mr SACH's revocation request, I am mindful that his health concerns may prove a significant impediment to his removal. In addition to the likely hardship he would face if removed, I accept that non-revocation may result in prolonged detention, including the possibility of indefinite detention should his condition permanently prevent his removal. 29 In having regard to the protection of the Australian community, the Assistant Minister expressed concern that the applicant's lengthy criminal history commenced in 1986. The Assistant Minister stated that this involved charges of common assault in circumstances of aggravation, assault occasioning bodily harm, grievous bodily harm, stealing and fraud, drug possession, breach of protective bail, carrying a controlled weapon, criminal damage, threats to injure, breach of violence restraining orders, breaches of judicial orders including suspended sentences, and various driving vehicle related offences. A number of the assault charges were committed against the applicant's partner, and the grievous bodily harm offence was against a friend while they were out drinking together. In 1997, the applicant was convicted of assault occasioning bodily harm against his parents. The applicant received fines, intensive supervision orders, suspended sentences and terms of imprisonment of up to two years for these offences. 30 The Assistant Minister referred to the applicant's offending history at [36]-[57] of his reasons for refusing to revoke the visa cancellation, concluding that, in light of the circumstances of the applicant's offending, especially that involving his long-term partner, his parents and his friend, his criminal conduct was very serious. 31 At [58]-[86], the Assistant Minister considered the risk the applicant posed to the Australian community. The Assistant Minister referred to the applicant suffering abuse as a child, his epilepsy diagnosis, mental illness and drug use, including stating as follows, at [60]: 60. In regards to his most recent convictions of 10 September 2015, Mr SACH submits that his reason for re offending was because he 'had relapsed on drugs' and as such he was 'not thinking right at the time' and that the domestic argument escalated to the point where the police were called. He also states 'I have always been remorseful for my actions'. The Judge noted that a psychiatric report submitted to the court on 10 September 2015 suggested that Mr SACH has mental and behavioural disorders due to his past substance abuse and a history of depression in remission. Mr SACH is described as 'emotionally unstable, with personality disorders and borderline and dissociate traits. You have anger management problems and problems solving difficulties. This is particularly so when you're under the influence of substances'. 32 At [62], the Assistant Minister accepted that the applicant had completed numerous rehabilitation programs such as Stop Family Violence, Career Development, Pathway and AA, Life Skills Re-entry Intervention Program, Brief Intervention Cognitive Skills, Drug and Alcohol Brief Intervention Programme, Stopping Family Violence Program, Pathways program and Career Development Workshop. In this regard, the Assistant Minister stated at [63] and [75]: 63. I am aware that the Department of Corrective Services Stopping Family Violence Completion Report received on 22 February 2017 states that Mr SACH has demonstrated treatment gains in the areas of interpersonal problem solving, conflict resolution and perspective taking, that he has made gains in the area of emotional management such that he has identified techniques to assist him in managing his emotions, including evidence of some gains in the area of relationship building skills which is particularly relevant given his lengthy involvement in abusive relationships. I am also aware that the report notes that Mr SACH has not had the opportunity to practise the treatment gains he has made in the community, particularly in the context of relationships and unaddressed substance-use related treatment needs, particularly around assertive refusal of peers. … 75. I also note letter dated 9 March 2017 by Acacia Prison stating that Mr SACH completed the Pathways program on 3 March 2017. Mr SACH was asked if he would like to withdraw from the program as he had missed a number of sessions because of his epilepsy condition, however Mr SACH chose to continue despite arriving looking flustered and unwell after having seizures. The report states that Mr SACH showed commitment to the program often staying back, demonstrating that he was motivated to address his offending behaviour. The report noted that Mr SACH worked towards addressing all the treatment needs recommended by the Pathways program, gaining an insight into his substance use behaviour. It was acknowledged that while the gains achieved through the program remain untested in the community setting, the report noted that if Mr SACH continued to 'practise skills and strategies he has put forth in his risk management plan and adhere to his overall goals, this may have a positive impact on his management of high risk situations in the community'. I accept and commend Mr SACH's commitment as it would have been difficult to continue to attend his sessions in light of his seizures. 33 The Assistant Minister referred to the sentencing remarks made by judges with regard to various offences, including as follows at [67] and [68]: 67. I note with concern the remarks of the court dated 10 September 2015, the Judge acknowledged that Mr SACH has been in a relationship with the complainant for 23 years, he described it as 'rocky, and it has been marred by violence and the like, and largely due to your drug use and problems with her family'. The Judge also acknowledged that the complainant had in the past domestic restraining orders in place and he acknowledged other material presented to the court which described Mr SACH's relationship with his partner as 'a love-hate relationship'. 68. I have considered the remarks of the court dated 7 February 2013. The Judge acknowledged that Mr SACH has been in a relationship with [his partner] for more than 20 years, describing the relationship as 'a very difficult and volatile relationship marred by domestic violence, also noting that a number of violence restraining orders had been issued in the past. The Judge also commented that despite the problems in the relationship, [his partner], together with her son, were the only people in the community with whom Mr SACH has a close relationship. However I note that [she] has made no submission in support of Mr SACH's application for revocation. 34 The Assistant Minister also referred to additional information including comments made by the Prisoners Review Board of Western Australia in determining that the applicant's release on parole would present an unacceptable risk to the safety of the community in concluding that, notwithstanding the applicant's progress toward rehabilitation, he could not disregard the applicant's past conduct toward his partner, nor the number of breaches of judicial orders by the applicant. 35 The Assistant Minister considered that there was a likelihood, albeit a low likelihood, that the applicant would reoffend and that should he reoffend in a similar manner, it could result in physical and/or psychological harm to members of the Australian community. The Assistant Minister concluded that the unacceptable risk of harm to the Australian community outweighed other considerations including the applicant's length of residence and bonds to Australia, the hardship he would suffer if returned to the UK after such a lengthy time, and the hardships his family would endure due to the delegate's decision not being revoked.

Application to this Court 36 On 18 April 2018, the applicant filed an application for an extension of time to seek review in this Court and a supporting affidavit made 15 April 2018. In his affidavit, the applicant states the following regarding his application for an extension of time: 1. I am the Applicant in this matter and swear this Affidavit in support of my Application for an extension of time. 2. I am self-representing. 3. I seek an extension of time to file an Appeal against the decision of the Minister to revoke my permanent Visa. 4. The reason I require an extension of time is because I am unfamiliar with the documentation and processes of the Court. I prepared the Originating Application and supporting documents to the best of my ability and when a request was made to have a Justice of the Peace attend at the Perth Immigration Detention Centre in Radcliffe I was advised that Serco would not accommodate that request over the Easter Long Weekend. 5. Due to me not having the ability to attend on a Justice of the Peace or one not being requested to attend at the Perth Immigration Detention Centre I was unable to have my documents witnessed within the time required. 6. For the reasons set out above I hereby request an extension of time in which to file my Appeal documents. 37 The applicant's further written submissions filed in support of his draft ground 3 set out at [18] above are referred to in detail below. 38 The Minister initially filed written submissions on 13 September 2018 that responded to the application prior to its amendment. In them, he outlines the applicant's history of violent offending and previous criminal sentences in some detail. 39 The Minister notes that, following a conviction for offences including for grievous bodily harm in 2013, the Department wrote to the applicant advising that a decision had been made not to cancel his visa at that time, and issuing him with a formal warning. Despite receiving that warning, the Minister says, the applicant committed violent offences in 2015. 40 In his submissions, the Minister refers to the 35 day deadline within which the applicant could make an application for judicial review under s 477A(1) of the Act, unless an extension of time is granted under s 477A(2). 41 The Minister contends that any application for review was to be filed with the Court by 22 March 2018, resulting in the applicant's current application being approximately 28 days late. While the Minister argues that the applicant's explanation for the delay in filing his application is inadequate, he accepts that the delay was not significant and he would not be prejudiced by the grant of an extension of time. 42 More significant, says the Minister, the application for review, and re-amended draft ground 3 specifically, has no reasonable prospects of success and for that reason the extension of time application should be refused. Alternatively, the Minister contends that if an extension of time is granted, the application for review should be dismissed. Further, the Minister seeks that the applicant pays his costs of the proceeding. 43 The Minister filed further submissions on 26 October 2018, in response to the amended draft. He also filed further submissions in response to the re-amended draft and the applicant's further submissions on 28 November 2018, which are referred to in detail below. 44 In the circumstances, I would not refuse this application on the basis of delay. The question is whether draft ground 3 has merit. If it does, the extension should be allowed, and the review application upheld.

Was the Assistant Minister's decision legally unreasonable?

Applicant's submissions 45 The applicant submits that his application should be allowed, and in the event of success, there should be no costs order to take into account the amendments to his application and the withdrawal of re-amended draft grounds 1 and 2. 46 He makes the following submissions: The decision of the Assistant Minister was legally unreasonable because it failed to take into account the prospect that he would remain in indefinite detention if the cancellation was not revoked. If the Assistant Minister exercises, or fails to exercise, discretionary power in a legally unreasonable manner, that can also constitute jurisdictional error. See Minister for Immigration and Citizenship v Li and Another (2013) 249 CLR 332; [2013] HCA 18; Minister for Immigration and Border Protection v Singh and Another (2014) 231 FCR 437; [2014] FCAFC 1; Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81; [2017] FCAFC 200; AZAFB v Minister for Immigration and Border Protection and Another (2015) 244 FCR 144; [2015] FCA 1383. Where the decision-maker provides reasons, the justification for the decision must be found in those reasons. See Singh at [47]. A decision-maker exercising a statutory power that may adversely affect a person's legal rights or interests, and in particular, an individual's life or liberty, ordinarily (unless otherwise provided by statute) must give proper, genuine and realistic consideration to the merits of the case. See Minister for Immigration and Citizenship v SZJSS and Others (2010) 243 CLR 164 at [26]-[30]; [2010] HCA 48. Having regard to the nature of the decision to be made by the Assistant Minister, the possibility of indefinite detention had to be balanced against the countervailing considerations. See Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29; [2016] FCAFC 61. The Assistant Minister expressly considered the extent of the impediment on the applicant if removed from Australia to the UK in his reasons at [25] and [26], and had before him a report from the International Health and Medical Services which set out the applicant's physical and mental health conditions, as referred to at [28] of his reasons. The Assistant Minister acknowledged that the applicant had ongoing treatment requirements at [29] of his reasons, and stated at [34] that "[i]n considering Mr Sach's revocation request, I am mindful that his health concerns may prove a significant impediment to his removal. In addition to the likely hardship he would face if removed, I accept that non-revocation may result in prolonged detention, including the possibility of indefinite detention should his condition permanently prevent his removal". The Assistant Minister was mindful that the applicant may face prolonged, potentially indefinite, detention, but did not explore or make any findings about how long "prolonged" might be, or the probability of the possibility of indefinite detention. Rather, the Assistant Minister just said he took it into account. 47 The applicant contends that the difficulty in this case is that it is hard to discern whether the decision is lacking an evident and intelligible justification. He says that, for the following reasons, it is lacking in that regard: (1) the Assistant Minister did not set out how "prolonged" any detention might be as a result of the non-revocation of the cancellation; (2) the Assistant Minister has not, at least expressly, considered the probability of indefinite detention or otherwise expressly weighed it up against the other factors; (3) to the extent it might be said that the Assistant Minister has weighed it up against other factors, he says at [90] that he gave "primary consideration" to the protection of the Australian community from criminal conduct by the applicant; (4) that reasoning is difficult to reconcile with the finding made at [85] that "there is a likelihood that Mr Sach will reoffend, albeit a low likelihood"; and (5) having determined that the likelihood of the reoffending was low, the Assistant Minister did not expressly weigh up the prospect of prolonged or indefinite detention against the low likelihood of reoffending. 48 The applicant submits that for these reasons, the Assistant Minister ought to have engaged in a process of actively weighing his findings about risk and reoffending with the prospect of prolonged or indefinite detention, in order to demonstrate an evident and intelligible justification of his non-revocation decision. Given the significance of prolonged or indefinite detention, particularly given the health issues suffered by the applicant, absent some evident active process of weighing the relevant factors, the Assistant Minister's decision lacks an evident and intelligible justification. 49 Further, the applicant says that even reading the Assistant Minister's reasons in a practical and common sense way, it is not possible to say how he reached his conclusion, citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 271-272; [1996] HCA 6. 50 The applicant submits that, while the Assistant Minister framed the protection of the Australian community as a "primary consideration" he had not sought to articulate the basis upon which that, even as a primary consideration, ought outweigh prolonged or indefinite detention. 51 The applicant points out that the Assistant Minister had not, for example, said: The practical outcome of my decision is that Mr Sach may potentially be indefinitely detained. Notwithstanding my findings about his poor health, I am satisfied that the prospect of indefinite detention is more preferable to exposing the Australian community to any risk of re-offending by Mr Sach albeit a low probability of re-offending. 52 He says that a statement to that effect may create evident and intelligible justification, however, where the Assistant Minister chooses to describe the protection of the Australian community as the primary consideration only, that does not demonstrate a process of reasoning which is similar to the example given. That would elevate the protection of the Australian community from being a primary consideration to the "paramount and only real" consideration. 53 This is to say, according to the applicant, that while expressed as a primary consideration, the Assistant Minister should have expressly balanced that "primary" consideration against the prospect of prolonged and/or indefinite detention. The failure to do so means that the decision not to revoke was unreasonable. It is not possible to say that, had the Assistant Minister approached the task in the way contended for, the outcome would have been the same.

Minister's submissions 54 The Minister's further written submissions filed 28 November 2018 are relied on in addition to submissions he filed on 26 October 2018. He argues that a review of the Assistant Minister's decision reveals that he specifically and carefully considered the applicant's claims and submissions, before weighing up all of the relevant matters and making findings. 55 The Minister submits that the Assistant Minister's findings were open on the evidence before him, after review and assessment of that evidence, and they could not be said to lack a logical connection with the evidence or to otherwise be illogical or unreasonable, citing Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611 at [51]; [2010] HCA 16. 56 He contends, in relation to the test for legal unreasonableness, as follows: Legal unreasonableness as a ground of review is established in migration matters in Li; and, more recently, Minister for Immigration and Border Protection v SZVFW and Others (2018) 357 ALR 408; [2018] HCA 30 and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11. The High Court of Australia has observed, with reference to s 75(v) of the Constitution and jurisdictional error, that where a statutory power is conferred the legislature is taken to intend that the discretion is to be exercised reasonably (Minister for Immigration and Citizenship v SZIAI and Another (2009) 259 ALR 429; [2009] HCA 39) and justly (see Kruger and Others v The Commonwealth of Australia (1997) 190 CLR 1 at 36; [1997] HCA 27 (Brennan CJ)) (see also Li at [65]-[66] (Hayne, Kiefel and Bell JJ), where the majority explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification (at [76])). Assessing whether a decision is legally unreasonable requires an evaluation of the decision with a view to determining whether, having regard to the subject matter, scope, and purpose of the relevant statutory power, the decision possesses one or more of the qualities conveyed by such words or expressions as "plainly unjust", "arbitrary", "capricious", "irrational", "lacking in evident or intelligible justification", and "obviously disproportionate" (Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at [65]; [2016] FCAFC 28). "Extreme" illogicality must be shown (CQG15 v Minister for Immigration and Border Protection and Another (2016) 253 FCR 496 at [60]-[61]; [2016] FCAFC 146, citing Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at [52], [54]-[56]; [2016] FCA 516). 57 In regard to the Assistant Minister's decision and this re-amended draft third ground, the Minister says: The Assistant Minister accurately set out the statutory framework in his decision and correctly determined that the applicant did not meet the character test. In considering the question of whether there was another reason why the cancellation decision should be revoked, the Assistant Minister noted that he had assessed all of the information set out in the attachments to his decision, and he summarised the applicant's representations as to why the cancellation should be revoked. He also identified factors he specifically considered in deciding whether there was another reason for revoking the decision, including the strength, nature and duration of ties to Australia, the extent of impediments if removed and the protection of the Australian community. The Assistant Minister gave detailed consideration to the applicant's medical conditions and his claims, in considering the extent of impediments if removed. The Assistant Minister had specific regard to the evidence relating to the applicant's fitness to travel, at [27] of his reasons, diagnosed medical conditions, at [28], treatment received for those conditions, at [29], and submissions in relation to the availability of treatment and support in the UK, at [30]-[32]. The Assistant Minister noted that, in considering the revocation request, he was mindful that the applicant's health concerns may prove a significant impediment to his removal, at [34], and relevantly commented "[i]n addition to the likely hardship he would face if removed, I accept that non-revocation may result in prolonged detention, including the possibility of indefinite detention should his condition permanently prevent his removal". In the present case, the prospect of indefinite detention arose as a result of the applicant's possible inability to travel as a result of his medical conditions, in circumstances where his ability to travel is a relevant consideration to whether it is reasonably practicable to remove him. On a fair reading of the Assistant Minister's decision, it is apparent that the Assistant Minister properly understood the consequences of the decision not to revoke the cancellation decision at the time he made the decision, specifically the consequence that the applicant may be detained for a prolonged period, possibly indefinitely. Contrary to the applicant's submission, it was not necessary for the Assistant Minister to make any findings about how long "prolonged" might be, or as to the probability of the possibility of indefinite detention. In fact, any such findings would have been entirely speculative, given the nature of the applicant's medical conditions and the likely variability in his fitness to travel. After identifying and considering each of the relevant matters, the Assistant Minister decided to give primary consideration to the protection of the Australian community and found this consideration outweighed the other considerations, at [90]-[94]. The Assistant Minister concluded that he was not satisfied that there was another reason why the visa cancellation should be revoked. That conclusion was open to the Assistant Minister on the evidence before him, and the conclusion has a logical foundation when regard is had to the Assistant Minister's reasons as a whole, including his findings as to the seriousness of the offending, the chances of reoffending and the risk to the Australian community. In particular, it is noted that, in light of the circumstances of the applicant's offending, including assaulting his long-term partner, his parents and his friends, the Assistant Minister considered the applicant's criminal conduct to be very serious, at [57]. Further, notwithstanding the applicant's progress towards rehabilitation, and having regard to the applicant's propensity to commit further offences after receiving a formal warning from the Department as well as his breach of judicial orders, the Assistant Minister found that there was a low likelihood that the applicant would reoffend but that if he did, it could result in physical and/or psychological harm to members of the Australian community, at [85]-[86]. As noted earlier, after addressing each of the relevant considerations, the Assistant Minister decided to give primary weight to the protection of the Australian community and found this consideration outweighed the other considerations. Implicit in that finding, and apparent from a fair reading of the Assistant Minister's decision as a whole, is that the he concluded that the protection of the Australian community was the paramount consideration, and outweighed (amongst other things) the fact that, if the decision was not revoked, the applicant would face prolonged, and possibly indefinite, detention.

Consideration 58 As explained above, the sole ground of the applicant's application for review of the decision of the Assistant Minister is that set out in draft ground 3, namely, that it was unreasonable in a legal sense. 59 The doctrine of legal unreasonableness has received a deal of attention in Australian law since the decision of the High Court in Li, which was delivered in 2013. 60 In Li, the plurality (Hayne, Kiefel and Bell JJ), observed at [64]-[76]: That a standard of reasonableness in the exercise of a discretionary power given by a statute had a long pedigree in the law. For example in Sharpe v Wakefield [1891] AC 173, it was said that when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. Their Honours said that that is what is meant by "according to law". It is to be legal and regular, not arbitrary, vague and fanciful. The discretion must be exercised within the limit, "to which an honest man competent to the discharge of his office ought to confine himself". That nonetheless, there is an area within which a decision-maker has a "genuinely free discretion". That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power is being abused. By reference to the Wednesbury unreasonableness standard, Wednesbury (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223) "is not the starting point for the standard of reasonableness, nor should it be considered the end point". The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision. The test of a decision being so unreasonable that no reasonable person could have arrived at it, "may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn, even where a particular error in reasoning cannot be identified". Even where some reasons have been provided, it may nevertheless not be possible for a court to comprehend how the decision is arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks "an evident and intelligible justification". 61 The Full Court of this Court, in Singh and Stretton has given close consideration to the circumstances in which a judge might, permissibly, find invalid an administrative decision on the basis of the legal unreasonableness standard. 62 Most recently, in SZVFW, a decision delivered on 8 August 2018, five members of the High Court had occasion to reflect on the nature of the doctrine of legal unreasonableness and the circumstances in which it may apply. 63 Rather than endeavour to harmonise the four separate judgments of the Court in SZVFW, it is both more convenient, not to say safer, to note the salient dicta of the members of the Court. 64 Chief Justice Kiefel (a member of the plurality in Li) made reference to Li, and at [10]-[12], observed as follows: In Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at. However, an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. Statements to the effect that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But that dicta serves to highlight the fact that the test for unreasonableness is "necessarily stringent". This is because the courts will not "lightly interfere" with the exercise of a statutory power involving an area of discretion. Where it appears that the dominating, actuating reason for the decision is outside the scope of the purpose of the statute conferring discretionary power, the discretion has not been lawfully exercised. 65 Justice Gageler (who wrote a separate judgment in Li, concurring in the result), at [51]-[59], made the following statements about the nature of a legally unreasonable decision, which statements reflected much of his Honour's reasoning in Li: Wednesbury unreasonableness was said by Brennan J in Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36; [1990] HCA 21 to be consistent with the proposition that acting on the implied intention of the legislature that a power be exercised reasonably, the Court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The expression of the standard of legal reasonableness in these terms has the benefit of emphasising both the "extremely confined" scope and context-specific operation of the limitation it imposes. That is not to say that the standard might not be appropriately expressed in another form of words. The nature of legal unreasonableness should be taken to be settled by the explanation of it in Quin. The question of whether or not a decision made or action taken in purported exercise of a statutory power is legally unreasonable is accordingly a question directed to whether or not the decision or action is within the scope of the statutory authority conferred on the repository. It follows that the Court has no option but to determine in the exercise of its jurisdiction whether the impugned decision is unreasonable, or is materially affected by unreasonableness. Nothing in Li, Singh or Stretton is inconsistent with this explanation of the nature of legal unreasonableness. Except where permitted by statute, a judge undertaking judicial review of administrative action would depart from performance of the judicial function and impermissibly enter the zone of discretion committed to the administrator were the judge to be drawn into forming his or her own conclusion as to whether the administrator had exercised power in a manner which, though lawful, might be characterised as an abuse. Reasonableness is not exhausted by rationality; it is inherently sensitive to context; it cannot be reduced to a formulary. There are no "talismanic" words that can avoid the process of judgment. 66 Justices Nettle and Gordon, in a joint judgment said, at [78]-[89]: By reference to Li, the task of the Court where it has been alleged that a decision is legally unreasonable is to ask whether the exercise of the power by the decision-maker is beyond power because it was legally unreasonable. That task requires the Court to assess the quality of the administrative decision, by reference to the statutory source of the power exercised in making the decision and, thus, assess whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power. The Parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker. The question with which the legal standard of reasonableness is concerned "is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker or, put in different terms, the decision is beyond power". That question is critical to an understanding of the task for a court on review. How that abuse of statutory power manifests itself is not closed or limited by particular categories of conduct, process or outcome. Nor is the abuse of statutory power limited to a decision which may be described as "manifestly unreasonable", or what might be described as an irrational, if not bizarre decision; or a decision that is so unreasonable that no reasonable person could arrive at it. A conclusion of legal unreasonableness may be "outcome focused". Indeed, grievous error may result if a court on review had to identify a particular error to found its conclusion of unreasonableness. If the Court approached the assessment in this way, at least one important part of the lens for assessing legal unreasonableness would be removed: "namely, error identified by observing that the result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances". In that situation, the Court is not undertaking merits review. Rather, the Court is asking whether the decision-maker's purported exercise of power was beyond power because it was legally unreasonable. Legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. The standard of reasonableness is derived from the applicable statute but also from the general law. There is a legal presumption that a discretionary power, statutorily conferred, must be exercised reasonably in the legal sense of that word. That is, when something is to be done within the discretion of the decision-maker, it is to be done according to the rule of reason and justice; it is to be done according to law. 67 Justice Edelman, at [131]-[135], stated: The reasonableness constraint that usually applies to the exercise by an administrator of a statutory power is generally based upon a statutory implication. The implication of reasonableness is not unique to statutes and may apply to the exercise of general powers in trust deeds or will trusts and in contract. The precise content of the implied duty of reasonableness will also depend on the circumstances. The precise content of an implication of reasonableness, where it is implied, will be based upon the context, including the scope, purpose, and real object of the statute. The important matter of context in relation to the statutory implication is the legal tradition in which many statutes conferring administrative powers have been enacted. A strong part of that tradition has been the common description of unreasonableness in the terms of "patent" unreasonableness. One reason for this description may be that the consequence of a finding of unreasonableness is that the decision by the body entrusted by Parliament will be beyond power and unlawful. The strong terms of the common description of unreasonableness may be based upon an assumption that Parliament did not manifest an intention that such a conclusion be lightly reached. There are, however, not two or more tests of unreasonableness, but only one. Its content, however, is assessed in the light of the terms, scope, purpose and object of the statute. 68 The submission made on behalf of the applicant is that in the Assistant Minister's final consideration of the question whether he should revoke the original decision cancelling the visa, an important consideration - that non-revocation may result in prolonged detention, including the possibility of indefinite detention should his condition permanently prevent his removal - was not one of the factors that the Assistant Minister overtly weighed before deciding to not revoke the original decision cancelling the visa. 69 In my view, there is merit in this submission and it is not answered by the submission made on behalf of the Minister that, if one fairly reads what the Assistant Minister said in his reasons at [90]-[94], it was referred to or sufficiently referred to. 70 The significant aspects of the Assistant Minister's reasons that lead to me to the conclusion that he did not have any or any proper regard to the indefinite detention finding, as a result of which the decision he made to not revoke the original decision was unreasonable, are as follows. 71 First, [27] of the Assistant Minister's reasons must be noted again. It states: In support of his request for revocation Mr SACH submitted a report dated 17 February 2017 from a Medical Officer at Acacia Prison, regarding his medical condition and his fitness to fly. The Medical Officer states that Mr SACH has refractory epilepsy, was a poor candidate to fly, and has no carers in the UK, thus placing him in a complex situation to be able to manage himself, on his own, with recurrent uncontrolled seizures. He was of the view that a specialist opinion would be required to determine his fitness to travel. I have also taken into consideration the departmental assessment of the primary health nurse from International Health and Medical Services (IMS) who has assessed Mr SACH is not fit to travel. 72 Of importance is the Assistant Minister's clear finding that Mr Sach was "not fit to travel", while the Assistant Minister was relying on a departmental assessment in that regard, and had been provided with all the relevant health assessment materials, he was not disputing that assessment but plainly adopting it. 73 Then, in fact, at [28] of his reasons, the Assistant Minister set out, in a summary form, from the health assessment materials he had been given, the various physical and mental health conditions that Mr Sach, the applicant, suffers. This paragraph is set out above, at [28], in full. 74 At [29] of his reasons, the Assistant Minister further acknowledged as follows: I acknowledge that Mr SACH has the following treatments: Ongoing appointments with Life Resolutions, ongoing GP follow-up for physical health issues and ongoing Neurology reviews, including pending EEG (test to detect electrical activity in the brain) and pending sleep study and I have taken this into consideration. 75 The pending EEG test to detect electrical activity in the brain is there referred to. In the supporting health assessment materials that underpin [27] and [28] of the reasons, that is identified as one of the uncompleted tests that affect the immediate capacity of the applicant to travel. 76 At [30]-[33] of his reasons, the Assistant Minister dealt with the question of what health support, amongst other things, would be available to the applicant in the UK, noting that comparable standards of healthcare, education, income and social welfare support would be available to the applicant in the UK. 77 As [33], the Assistant Minister also recognised that non-revocation of the cancellation decision would involve substantial hardship for him, particularly having regard to the length of time he had spent in Australia and his mental and physical health issues and the time it would take to establish linkages to the UK health network and establish rapport with various health practitioners. 78 Then, at [34], the Assistant Minister expressly stated: In considering Mr SACH's revocation request, I am mindful that his health concerns may prove a significant impediment to his removal. In addition to the likely hardship he would face if removed, I accept that non-revocation may result in prolonged detention, including the possibility of indefinite detention should his condition permanently prevent his removal. 79 The Assistant Minister thereby expressly accepted that non-revocation may result in prolonged detention of the applicant in Australia, including the possibility of indefinite detention should his condition permanently prevent his removal. 80 In my opinion, nowhere in the reasons subsequently, or in [34], is any evaluation made by the Assistant Minister as to the relevance of the possibility of indefinite detention to the question whether the original visa cancellation decision should be revoked. 81 While the Minister points to the general language used in [87] and following of the reasons, I do not consider that such an obviously important consideration - the possibility of indefinite detention - can be taken, on the terms of the Assistant Minister's reasons, to have been given any or any proper consideration in the critical weighing process that was ultimately carried out by the Assistant Minister in those paragraphs. 82 In [87]-[95] of the reasons, the Assistant Minister stated: 87. I considered all relevant matters including (1) an assessment of whether the person has made representations in accordance with the invitation for the purposes of s501CA(4)(a); (2) an assessment of whether I am satisfied that the person passes the character test (as defined by s501) for the purposes of s501CA(4)(b)(i); (3) an assessment of whether I am satisfied that there is another reason why the original mandatory cancellation decision (original decision) should be revoked for the purposes of s501CA(4)(b)(ii); and (4) all evidence available to me, including evidence provided by, or on behalf of, Mr SACH. 88. I concluded Mr SACH has made representations in accordance with the invitation. 89. I am not satisfied that Mr SACH passes the character test (as defined by s501). 90. In considering, in light of Mr SACH's representations, whether I was satisfied that there is another reason why the original decision should be revoked, I gave primary consideration to the protection of the Australian community from criminal conduct committed by Mr SACH which is of a violent nature. 91. In addition, I have considered the length of time Mr SACH has made a positive contribution to the Australian community during his 43 years in Australia and the consequences of non-revocation of the original decision for his family members. 92. Further, I find that the Australian community could be exposed to significant harm should Mr SACH reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr SACH. 93. I am cognisant that where harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa, even applying a higher tolerance of criminal conduct by Mr SACH, than I otherwise would, because he has lived in Australia for most of his life, and from the very young age of seven. 94. In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr SACH represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the other considerations as described above. These include his lengthy residence and bonds to Australia, the hardship that he will suffer if returned to the United Kingdom after a period of 43 years in Australia, and the hardship his family will endure in the event the original decision is not revoked. 95. Having given full consideration to all of these matters, I am not satisfied, for the purposes s501CA(4)(b)(ii), that there is another reason why the original decision under s501(3A) to cancel Mr SACH's visa should be revoked. Accordingly, as I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not enlivened and Mr SACH's a Class BF transitional (permanent) visa remains cancelled. 83 In my view, other important considerations that the Assistant Minister had previously discussed, including the failure of the applicant to pass the character test by reason of his criminal conduct and sentencing, the protection of the Australian community from his criminal conduct of a "violent nature", the length of the time he had made a positive contribution during his 43 years in Australia, "and the consequences of non-revocation of the original decision for his family members", were considered at [89]-[91]. 84 At [92], the Assistant Minister found that the Australian community could be exposed to significant harm should the applicant reoffend in a similar fashion. That was another factor that he had dealt with earlier, for example at [84]-[86] of his reasons. 85 The question of the harm that might be inflicted on the Australian community was addressed, but the Assistant Minister, at [94], ultimately concluded that the applicant represented an "unacceptable risk of harm" to the Australian community and that the protection of the Australian community outweighed the "other considerations as described above". 86 The Assistant Minister added, at [94], that these included the residence and bonds to Australia, the hardship that the applicant will suffer if returned to the UK after a period of 43 years in Australia, and the hardship his family will endure in the event the original decision is not revoked. 87 However, the Assistant Minister did not, at any point, address the question of prolonged detention, including the possibility of indefinite detention in Australia of the applicant should the original decision not be revoked and why, having regard to that consideration, he was of the opinion that it remained appropriate to not revoke the original decision. 88 I do not accept the Minister's submission that the words in [94], "as described above", are sufficient to indicate, on a fair reading of the Assistant Minister's reasons, that the Assistant Minister in fact took into account the acceptance of the possibility of indefinite detention that he had expressly noted at [34] of his reasons. In my view, on a fair reading of the Assistant Minister's reasons, that possibility had been overlooked in the final weighing of considerations. 89 If that consideration had been taken into account at the weighing stage, it is plain that the Assistant Minister may well have arrived at a completely different decision. At the very least, the Assistant Minister would have had to take the trouble to explain why, notwithstanding the possibility of indefinite detention should he not revoke the original decision to cancel the visa, it was appropriate to not revoke the original decision having regard, in particular, to all of the other circumstances personal to the applicant outlined in his reasons. 90 For these reasons, I consider that the Assistant Minister's decision was unreasonable in a legal sense, as discussed in the various judgments in Li and in SZVFW. In particular, having accepted that the applicant's health circumstances may prevent him from travelling to the UK with the result that his indefinite detention in Australia was a possibility, the Assistant Minister ignored an important consideration he himself had noted. It matters not what language one uses to describe this decision - irrational; lacking an evident and intelligible justification; or because the result of the decision-making is not reasonable, on the basis that it could not have been reached if proper reasoning had been applied - the result is the same. The decision was unreasonable.

Conclusions and Orders 91 For these reasons orders should be made granting an extension of time to seek review and allowing the review. 92 I will hear from the parties as to the terms of the final orders to be made. I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.