Disposition
21 The issue for determination is whether the Minister's decision as to whether there was "another reason why the original decision should be revoked" for the purposes of s 501CA(4)(b)(ii) of the Act was infected with jurisdictional error. The applicable legislative regime, for that purpose, was summarised by Robertson, Moshinsky and Bromwich JJ in Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 at [19] as follows:
As summarised by the primary judge, in broad terms, the relevant statutory scheme was as follows. Under s 501(3A), the Minister had a duty to cancel a visa if the Minister was satisfied that the visa holder did not pass the character test prescribed in s 501(6) because, among other things, the person had been sentenced to and was serving a term of imprisonment of twelve months or more on a full-time basis (see ss 501(6)(a) and (7)(c)). Natural justice requirements did not apply to the visa cancellation decision. Thus, in this particular case, the respondent was not given an opportunity to be heard prior to his [Resolution of Status] visa being cancelled on 21 December 2015. When the Minister cancelled a visa under s 501(3A), the Minister had to give the affected person notice of the visa cancellation decision and invite the person to make representations to the Minister about possible revocation of the visa cancellation decision (s 501CA(3)). Under s 501CA(4), the Minister had a discretion to revoke the visa cancellation decision if representations were made and the Minister was satisfied either that: the person passes the character test prescribed in s 501(6); or "there is another reason why the [visa cancellation] decision should be revoked" (501CA(4)(b)(ii)). If the Minister revoked the visa cancellation decision, that original decision was taken not to have been made (s 501CA(5)).
22 Based upon an examination of the language of s 501CA(4)(b)(ii) in its statutory context, the subparagraph confers upon the Minister a dispensing or relieving power in the broadest of terms. It reposes in the Minister the duty to determine if "there is another reason why the original decision should be revoked". This is a power of statutory clemency. Traditionally, courts of law have declined to review judicially what is sometimes called the prerogative of mercy: Horwitz v Connor (1908) 6 CLR 38; Von Einem v Griffin (1998) 72 SASR 110; Yasmin v Attorney General of the Commonwealth (2015) 236 FCR 169 at [83].
23 In that respect, the essential nature of the power here is different to the power in s 501(2) of the Act which confers, not a dispensing power, but a power positively to cancel a visa. This has been recognised by the Full Court of this Court. In BSJ16 v Minister for Immigration and Border Protection (2017) 252 FCR 82, the Court said at [28]-[30]:
The task of the Minister required by s 501(2) of the Migration Act, which was examined by the Full Court in Moana [(2015) 230 FCR 367], is not the same as that imposed on the Minister by s 501CA.
Section 501(2) requires the Minister to assess his or her level of satisfaction as to whether the person has passed the character test as defined by s 501(6). Section 501(6) is relatively prescriptive, including s 501(6)(d) which requires the Minister to consider whether, in the event the relevant person is allowed to enter or to remain in Australia, there is a risk that the person would, inter alia, engage in further criminal activity or represent a danger to the Australian community (or to a segment of that community).
On the other hand s 501CA, in particular s 501CA(4), requires the Minister to engage in a different decision-making process. Pursuant to s 501CA(4) the Minister may revoke a visa cancellation decision if the person makes representations and the Minister is satisfied either that the person satisfies the character test or that there is another reason why the original decision should be revoked. The factors to which the Minister can have regard in determining whether or not to revoke a visa cancellation decision are unconfined by the statute, subject to the principle that they must be those which can be implied from the subject-matter, scope and purpose of the legislation: Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.
That is not to deny the relevance of the jurisprudence concerning s 501(2) of the Act. The decision at first instance in BSJ16 (see [25] below), illustrates that principle: BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181.
24 Two further points should be observed. First, the provision contains a non-exhaustive obligation of procedural fairness. Section 501CA(3) requires the affected applicant to be invited to make submissions. In Picard v Minister for Immigration and Border Protection [2015] FCA 1430, Tracey J said at [42]:
It does not follow that, in all cases, the Minister will accord procedural fairness simply by complying with the requirements of s 501CA(3). Once the invitation to make representations is extended to a visa holder it falls to the visa holder, if he or she wishes to do so, to provide information and submissions to the Minister in an effort to persuade the Minister that a revocation decision should be made. Those representations will be made in the knowledge that the Minister is likely to be guided by some or all of the considerations referred to in [Ministerial] Direction 65. The applicant will, therefore, be in a position to provide the Minister with information relating to those considerations, including information which might seek to anticipate and allay concerns which the Minister might harbour relating to the applicant's circumstances and conduct. If, in making representations, the applicant provides information to the Minister, relating to his or her personal circumstances, and that information is critical and relevant to the applicant's case the Minister is bound to consider it. It will be a matter for the Minister to weigh such matters against other relevant considerations, including those mentioned in Direction 65. It will not, normally, be necessary for the Minister to afford a further opportunity to the applicant to deal with particular issues. If, however, the Minister becomes aware of information which is personal to the applicant and which might lead the Minister to disbelieve some critical information supplied by the applicant, it may be necessary for the Minister to expose that information to the applicant and give the applicant the opportunity of responding to it before making a decision.
25 Secondly, the Minister here considered the issue of harm to the Australian community, as he was required to. In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, Moshinsky J said at [68]:
By parity of reasoning with the cases on s 501(2) discussed above, the Minister in exercising the power conferred by s 501CA(4) has no duty to evaluate the risk of harm to the Australian community "in any particular way or to ascribe any particular characterisation to the quality of the risk": see Brown [(2015) 235 FCR 88] at [41], citing Moana [(2015) 230 FCR 367] at [71] and Ayoub [(2015) 231 FCR 513] at [44]. In other words, there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational (in the sense used in cases such as Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1).
See also Stojanovski v Assistant Minister for Immigration and Border Protection [2017] FCA 609 at [41].
26 As already mentioned, the applicant's case eschewed any reliance on grounds relating to irrationality or illogicality or legal unreasonableness. Instead, because the Minister failed to consult or make enquiries beyond an examination of the Certificate, it was contended that the Minister had either failed to complete his task or had made findings which were not open to him.
27 I will address the evidentiary basis for the Minister's decision first. Weinberg J said in Australian Retailers Association and Others v Reserve Bank of Australia (2005) 148 FCR 446 at [575]:
Under s 39B of the Judiciary Act (which reflects the common law), the "no evidence" ground requires that there be simply no evidence, or other material, to justify the findings of fact made. Aronson, M, Dyer, B and Groves, M, Judicial Review of Administrative Action (3rd ed, Lawbook Co, 2004)] suggests, at 239, that "no evidence" means "not a skerrick of evidence". If there is some evidence, no matter how unconvincing, and no matter how overwhelming the evidence to the contrary may be, the traditional approach is to treat the complaint as factual, and not legal. According to Mason CJ in Bond [(1990) 170 CLR 321], at 356:
So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
28 In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ said at 355 - 356:
The question whether there is any evidence of a particular fact is a question of law: McPhee v. S. Bennett Ltd. [(1934) 52 WN(N.S.W.) 8, at p. 9]; Australian Gas Light Co. v. Valuer-General [(1940) 40 SR(NSW) 126, at pp. 137-138]. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light [at pp 137-138]; Hope v. Bathurst City Council [(1980) 144 CLR 1, at pp 8-9]. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v. Broken Hill South Ltd. [(1941) 65 CLR 150, at pp 155, 157, 160]. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v. Maryborough Mining Warden [(1975) 132 CLR 473, at pp 481, 483].
But it is said that "[t]here is no error of law simply in making a wrong finding of fact": Waterford v. The Commonwealth [(1987) 163 CLR 54 at p. 77], per Brennan J. Similarly, Menzies J. observed in Reg. v. The District Court; Ex parte White [(1966) 116 CLR 644, at p. 654]:
"Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law."
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
See also Federal Commissioner of Taxation v Pham (2013) 134 ALD 534.
29 In determining whether a finding is supported by "some basis" or a "skerrick" of evidence, one should ask whether evidence existed which could rationally affect the assessment of the probability of the existence of a fact (c.f. s 55 of the Evidence Act 1995 (Cth)) or a future fact. If such evidence exists, it is for the decision maker, and not this Court, to determine its probative weight and to decide whether it does, or does not, support a given finding.
30 I do not think it can be said here that there was not "a skerrick of evidence" before the Minister justifying the finding made about the seriousness of the crimes committed. The example of the offence relied upon by the applicant, supra, doubtless well illustrates his complaint. But the Certificate listed other offences which, in my view, provided a basis to support this finding. These included those listed as "Threat to Inflict Serious Injury"; "Endanger Serious Injury"; "Contravene A Conduct Condition Of Bail Harass Witness (2 Charges)"; "Intentionally Cause Injury (2 Charges)"; "Make Threat To Kill"; "Unlawful Assault"; "Breach Of Suspended Sentence Imposed on 11 May 2011"; and "False Imprisonment". These descriptions of the offences committed (including one involving breach of a suspended sentence), gave the Minister an evidentiary basis for his finding about the seriousness of the offences committed.
31 However, after much consideration, I am not satisfied that there existed a "skerrick" of evidence, or "some basis" for the findings reached that there existed a "likelihood" that the applicant would re-offend and, accordingly, that he represented an "unacceptable risk of harm to the Australian community". Looking at the applicant's convictions for crimes of violence over a five year period, the Certificate records that he was convicted on two occasions of assault and of two charges of intentionally causing injury. He was also convicted of false imprisonment. Whether these violent acts formed a pattern of behaviour is unknown. Whether they constituted similar acts of violence involving the same or similar victims is unknown. Whether they revealed a trend of increasing or decreasing degrees of violence is unknown. Whether they were the product of, or affected by, the taking of drugs is unknown. Why the applicant at the age of 46 commenced for the first time committing crimes is unknown; at best we know that it started with the possession of prohibited drugs. What mitigating circumstances existed, if any, relating to why the applicant's life changed, and in relation to each act of violence, is unknown. Upon investigation it may be found that no mitigating circumstances existed and that the Minister's findings were well justified. But absent a form of investigation into the quality and circumstances of the convictions, the bare recital of their historical existence in the Certificate and the resultant sentence, whether considered individually or in aggregate, did not constitute "some basis" for a prediction about future behaviour. This material was simply too vague to ground rationally findings about the applicant's future behaviour.
32 For similar reasons, I am not satisfied that the convictions which appear to record an indifference to the rule of law, provide a basis for the finding concerning the "likelihood" that the applicant will re-offend in a way that creates a risk of harm to the Australian community. The applicant was convicted in 2011 of failing to answer bail, in 2012 of being in breach of a suspended sentence and in 2015 of persistent contravention of a family violence order. The applicant also ignored the warning from the Department. These are all very serious matters. But we know nothing about the circumstances leading to each conviction, and as to why the warning was ignored. There may, or may not have been, mitigating circumstances which could have rationally affected the Minister's decision about the likelihood of harm. Again, the bare recital of conviction and sentence in and of itself, and whether taken individually or cumulatively with the other offences, did not rationally support or not support, the Minister's finding about the risk of harm.
33 I have reached a similar conclusion concerning the offences relating to the possession and tracking of prohibited drugs.
34 It is true that it was open to the applicant to have produced further information concerning the circumstances of his convictions. After all, the applicant was the best person to know of the mitigating circumstances (if any) associated with the commission of his crimes. As the Full Court of this Court observed in Wozniak v Minister for Immigration and Border Protection [2017] FCAFC 148 at [28], in a case in which it was contended that the Minister had erred in exercising his power under s 501CA(4)(b)(ii) in failing to call for a certain pre-sentencing report ("PSR"):
If the applicant considered that the PSR was important to his application for revocation in some way, it was a matter for him to say so. He was constructively on notice that the Department either did not have a copy of the PSR, or at least did not intend to have regard to it, by the fact that the transcript was sent and the PSR was not, and by the fact that no comment was sought in relation to the PSR. Procedural fairness required no more. There was no practical injustice in nothing being done to obtain the PSR.
35 However, it was the Minister who made the finding about the risk of re-offending and of harm to the Australian community. It was incumbent upon him to ensure that his findings were supported by evidence, especially having regard to the strong factors advanced by the Minister which weighed against deportation. I have found this to be an extreme and rare case. In my view, for the foregoing reasons, and with respect, the Minister's decision must be set aside and the case re-examined.
36 It will be a matter for the Minister to make such enquires as might produce evidence which addresses the likelihood of re-offending and of resultant harm to the community. He might apply to have access to tape recordings of the sentencing remarks made by the sitting magistrates, if these are available. He might be able to ask the applicant himself to obtain these recordings or further information about the circumstances of each offence. Inquiries might be made of the police, and of those who prosecuted the applicant. This is not intended to be an exhaustive list. Following the making of these inquiries, it will then be for the Minister to evaluate and assess the probability of re-offending and the quality of the risk the community may face. That probability and quality will then need to be balanced against the facts against deportation already identified by the Minister. It will be for the Minister to judge how these factors are to be balanced against each other.
37 For these reasons, it is unnecessary for me to consider the applicant's other ground of review.
38 It is finally also unnecessary for me to consider the application of North J's reasons in Cotterill; the measure of legal unreasonableness found by his Honour to exist in that case turned upon its particular facts. Moreover, that case concerned s 501(2) and not s 501CA(4). For similar reasons, the observations of Mortimer J in Tanielu are not determinative here.
39 This application should be allowed with costs.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward.