Toki v Minister for Home Affairs

1.1 The proceedings 1 The applicant, Martin Toki, is 55 years old and has lived in Australia since 1981, when he was 15 years old. He was born in the Cook Islands and is also a citizen of New Zealand, where he spent most of his adolescence. Since his arrival in Australia he has committed a number of criminal offences, the first being in 1982. In 2000 he was convicted of the January 1999 murder of his de facto wife and subsequently sentenced to 22 years imprisonment. He was convicted of a number of offences committed whilst in prison. In 2009 he was convicted of two counts of causing malicious damage by setting his cell on fire, for which he was found by the court to be not guilty on the grounds of mental illness and ordered to be placed in a mental health hospital, where he has remained. 2 Mr Toki came to the attention of the Department of Home Affairs in 2018, and on 3 October 2018 the Minister for Home Affairs cancelled his Class TY Subclass 444 visa pursuant to s 501(3A) Migration Act 1958 (Cth). 3 Section 501CA(4) of the Act provides that the Minister may revoke the original decision to cancel if: (a) the person makes representations in accordance with the invitation given under s 501CA(3)(b); and (b) (i) the Minister is satisfied that the person passes the character test (as defined by s 501), or (ii) there is another reason why the original decision should be revoked. 4 Mr Toki made representations to the Minister, and on 21 October 2020 the Minister determined that Mr Toki did not pass the character test and that there was not another reason why the original decision should be revoked. Because the decision was made personally by the Minister, it is not amenable to a merits review pursuant to s 476A(1)(c) of the Act. 5 Mr Toki now seeks judicial review of the decision of the Minister on the basis that it is affected by jurisdictional error. He was represented pro bono by Anthony Krohn of counsel pursuant to a certificate issued under r 4.12 of the Federal Court Rules 2011 (Cth), who provided written submissions in advance of the hearing. The Minister was represented by Rachel Francois of counsel, who also filed written submissions. 6 In this application Mr Toki: (1) Seeks leave to amend his originating application; (2) Seeks leave to adduce additional evidence in the form of an affidavit of Dr Rafe Pulley, consultant forensic psychiatrist; and (3) Contends by the content of his amended originating application that the Minister's decision reflects jurisdictional error. 7 The Minister opposes each of these. 8 For the reasons set out below, I grant leave to Mr Toki to amend his originating application, decline leave to adduce additional evidence and dismiss his application as amended.

1.2 The application to adduce fresh evidence 9 At the outset of the hearing Mr Toki sought leave to adduce fresh evidence in the form of an affidavit from Dr Rafe Pulley, consultant forensic psychiatrist. No affidavit from Dr Pulley was before the Minister at the time of his decision. The affidavit refers, inter alia, to the effect of the cancellation of Mr Toki's visa while he remains in Australia, impediments to the likely progression of his mental health if the cancellation is not reversed, the rate of recidivism of people who are released from the Justice Health and Forensic Mental Health Network, and the availability of forensic medical assistance in New Zealand. 10 Mr Toki relied on the reasoning of the Full Court in Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643 at [48] (Rares and Robertson JJ) and at [68]-[69] (Flick J) in support of the proposition that, if a visa holder raises a submission the facts of which are not within his own control but are in the control of the Minister, then it may be appropriate to admit evidence, relying in particular on Flick J at [69]. 11 The Minister opposed the grant of leave on the bases first, that the proposed amended pleading does not raise any ground going to a failure on the part of the Minister to make any inquiry in relation to an obvious fact that is easily ascertainable, as contemplated by Maioha. Secondly, that there were real questions going to the admissibility and relevance of the further material. Thirdly, because the evidence could have been obtained and supplied prior to the decision of the Minister, and finally because the decision in Maioha was not in any event applicable. In this regard the Minister cited Minister for Immigration and Border Protection v Singh [2016] FCA 575 at [58] (Edelman J). 12 At the hearing I refused Mr Toki leave to rely on the further evidence, substantially for the reasons advanced by the Minister. I was not satisfied that the limited exception contemplated in Maioha applied and considered that the reasons summarised in Singh at [58] demonstrated that such leave should be refused. 13 After I refused leave to rely on the affidavit of Dr Pulley, Mr Toki indicated that he no longer pressed those grounds of his proposed amended originating application that relied on this evidence, being proposed particular 1(c)(vii) and proposed ground 2(c).

2.1 The decision of the Minister 14 The Minister noted that by reason of his criminal convictions, Mr Toki does not pass the character test within s 501 of the Act. 15 The Minister was satisfied that Mr Toki had made representations in accordance with s 501CA(4)(a) of the Act and summarised those submissions as follows at [12]: • His removal from Australia would result in his isolation from all his family and friends, as well as all support services currently in place for his mental health. • If he returned to the Cook Islands there would be inadequate mental health services available to him there. • At the time of his offences he was 'not managing symptoms of major mental illness effectively, or having any interventions for personality disorder'. • He is currently engaging with rehabilitation programs at the Forensic Hospital. • He is at low risk of reoffending due to significant progress in his 'own insight into mental illness, awareness of early warning signs and triggers, and transparency regarding previous environments that lead to offending behaviour'. • He is regarded as polite and considerate by several corrections staff who have submitted letters of support. • He is likely to remain in the Forensic Hospital until such time that the Mental Health Review Tribunal is satisfied that his level of risk can be managed in a medium security unit. • As a forensic patient, upon release to the community he will be subject to a community treatment order with restrictions on matters such as conduct, medication, relationships and engagement with mental health. 16 The Minister then considered the extent of impediments that Mr Toki will face if removed from Australia to his home country of the Cook Islands or New Zealand in establishing himself and maintaining basic living standards. The Minister found: [14] I have taken into account Mr TOKI's submission that he would be isolated from all his family in Australia and that, as he has no family or friends living in the Cook Islands or New Zealand, he would be isolated from his current mental health supports. He also submits that mental health services in the Cook Islands are very basic and limited, which could lead to a deterioration in his mental health conditions. [15] I accept that Mr TOKI's removal from Australia will leave him without familial support, which may in turn result in some difficulty in establishing himself in a country he has not lived in since his childhood, I do not consider he will encounter any significant cultural or linguistic issues, given he spent his childhood in the Cook Islands or New Zealand, and English is an official language in both countries. [16] I note that there is no evidence other than Mr TOKI's own statements that he has family support in Australia, as no family members have provided submissions for the current consideration. Therefore I am not persuaded that he would be substantially worse off in the Cook Islands than Australia, in this respect. [17] I accept that, in respect of any needs for psychological treatment that he may have, and in light of a 2015 report by the World Health Organisation, which indicates that mental health treatment resources in the Cook Islands are very basic and limited, it is very unlikely that they would compare in standard to what Mr TOKI would receive in Australia, but I find that he will have access to mental health services commensurate with other citizens in similar circumstances. I acknowledge that these might not be sufficient to manage Mr TOKI's particular mental health issues, which are very serious. [18] I note that Mr TOKI's own statements indicate that he will not be released from criminal custody until the NSW Mental Health Review Board [sic, Tribunal] is satisfied that it is safe to do so. Accordingly it would seem that he would then present a lower risk of mental deterioration, though I acknowledge that this would be partly conditional on intensive follow up monitoring that is normal in such cases as his, in Australia. [19] Finally, I consider that as a New Zealand citizen, Mr TOKI would be able to live in that country, where he would have access to mental and other health services comparable with those available in Australia and would therefore have appropriate support in managing his mental health. (Emphasis added.) 17 The Minster considered the strength, nature and duration of Mr Toki's ties to Australia. He noted that he gave less weight to this consideration because Mr Toki started to offend as a juvenile in 1982, soon after arriving in Australia and continued to offend after that, often violently. He noted that in the 39 years that he has been in Australia, Mr Toki has only spent about 13 years in the community because of the many custodial terms that he has served. The Minister also noted at [22] that whilst Mr Toki has a large family in Australia, "no representations have been received from any of them and there is no information available to me to show that their relationships with Mr TOKI are particularly close". The Minister concluded that whilst members of his immediate family may experience emotional hardship, no submissions were made by any of his family attesting to the nature and significance of their relationship with him and he gave this consideration little weight. 18 The Minister considered the lengthy history of Mr Toki's criminal offending in some detail. He noted that in June 2010 he was convicted of assault occasioning actual bodily harm for what the sentencing judge described as a "very serious unprovoked attack" on a fellow inmate. He also noted the April 2009 charges arising from the incidents where Mr Toki ignited cell fires whilst in prison, noting the remarks of the sentencing judge that Mr Toki suffered from a "relapsing psychotic illness of either a bipolar disorder type or a schizo-effective disorder ongoing since 1999" and that at the time of the offences he was suffering a psychiatric condition caused by disease of the mind. The Minister also referred to a number of other acts of violence that led to convictions, including the murder conviction in 2000 and a conviction in 1999 for robbery in company. The Minister concluded that Mr Toki's criminal conduct was very serious. 19 The Minister then turned to whether Mr Toki poses a risk to the Australian community through reoffending. Mr Toki's mental health features as an aspect of several of the particulars advanced in the present application for review and accordingly I set out this section in full: [41] As summarised above, Mr TOKI has a record of exceptionally serious violent criminal offending, including Murder in a domestic setting. If he were to reoffend, it is very likely that the consequences would be potential [sic] of a very serious kind, including major physical injury and possibly death to member/s of the Australian community. [42] I have considered the submission from Mr TOKI that 'at the time of offences (he) was not managing symptoms of major mental illness effectively'. It is clear from sentencing remarks pertaining to several of Mr TOKI's offences, and psychiatric reports, his present custodial placement in a secure mental health facility and his own submissions, that Mr TOKI's offending has been closely linked to severe and ongoing mental health issues. Available information establishes that he has been diagnosed with Schizoaffective Disorder, Antisocial Personality Disorder, Substance Use Disorder and Post-Traumatic Stress Disorder. Furthermore he is currently confined in the Forensic Hospital of NSW and not eligible for parole as the Mental Health Review Board [sic, Tribunal] is not satisfied that his conditions are sufficiently under control at this time. [43] I have had regard to the finding of the court in 2009 that Mr TOKI had committed two offences in the nature of arson, but was not guilty of criminal offending on mental health grounds, relying on evidence in a report before the court that he was suffering a 'relapsing psychotic illness of either a bipolar disorder type or a schizo-effective disorder ongoing since 1999' and had not taken the necessary medication at the time of the offences. [44] However, I note that Mr TOKI's criminal history includes a number of very serious offences that occurred before 1999 and for which he received substantial periods of imprisonment. [45] I also had regard to the remarks and dispositions of both the trial and appellate courts in relation to Mr TOKI's conviction and sentencing for Murder, in particular that the weight of evidence did not support a defence of substantial impairment of mental faculties. I give weight to the trial judge's remarks that 'there is no suggestion that at the time of the murder or on any other occasion that the prisoner was inflicting injuries upon the deceased, that he did so under the effects of a mental disorder'. [46] I have considered the submission that upon release, Mr TOKI will present a low risk of reoffending because of the restrictions that he will be under as a forensic patient in the community. I also note that he will not be released until both the NSW Parole Board and the Mental Health Review Board [sic, Tribunal] consider that his various conditions have reached a state that makes it relatively safe to do so. I recognise the value of both these factors, however Mr TOKI has a history of non-compliance with parole and other judicial orders and indeed a history of non-compliance with medication while incarcerated. This gives me pause in assuming that he will remain compliant with community treatment orders as time goes on and therefore I have some doubt that any such orders will effectively remove his risk of reoffending. [47] While I accept that Mr TOKI suffers from serious mental health disorders, I am not satisfied that these conditions have been principally to blame for all of his offending and I therefore consider that even with effective treatment of these conditions, some ongoing risk that Mr TOKI will reoffend remains. [48] I have considered submissions that Mr TOKI is currently engaged in rehabilitation programs in the Forensic Hospital and has made significant progress in developing insight into his 'mental illness, awareness of early warning signs and triggers, and transparency regarding previous environments that lead to offending behaviour'. I have also considered submissions which attest to his generally polite and considerate nature. These speak of his positive engagement with programs, his peers and corrections staff. [49] I acknowledge Mr TOKI's rehabilitation efforts and other information referred to that may lower the risk of him reoffending. However, I also consider that his rehabilitation has not yet been tested in the community and that past experience strongly suggests that he will struggle to stay crime free, especially if he resumes use of alcohol or drugs. [50] I find there is an ongoing risk that Mr TOKI will re-offend. He has demonstrated a disregard for judicial orders and has breached the trust of the community on many occasions, having been convicted of a number of extremely violent offences, some of which occurred while he was incarcerated. I consider that further offending of a violent nature including in a domestic setting, could result in very serious physical harm to a member or members of the Australian community. 20 After weighing up the factors to which he had referred earlier in his reasons the Minister concluded that he was not satisfied that there is another reason why the decision to cancel Mr Toki's visa should be revoked.

2.2 Prior findings relevant to Mr Toki's mental health 21 The sentencing remarks of Nicholson DCJ are in a judgment dated April 2009 which forms attachment F to the materials supplied to the Minister: see R v Toki, Martin [2009] NSWDC 186. There, the judge made the following observations about the nature of the sentence: 28. Before I embark upon the legal concepts of the mental illness defence, I intend to explain to the consequence of a finding, that the accused is not guilty by reason of mental illness. A verdict of not guilty by reason of mental illness would mean that because of the verdict, there is no consequence to the accused arising from the charge other than that he would be oversighted by the Mental Health Review Tribunal. A verdict of not guilty on the grounds of mental illness would normally mean that I would order that he be detained in strict custody in such place and in such manner as to me seems fit until released by due process of law. Due process of law includes not only his continued detention until release but that he would come under the supervision of the Mental Health Review Tribunal. The registrar of this court would notify the Minister for Health and the Mental Health Review Tribunal of every post verdict order made by the trial judge. 29. The Mental Health Review Tribunal consists of a president or his deputy who must be a lawyer. It also consists of two other persons, one of whom must be a psychiatrist. The third member is a person who has suitable qualifications or experience for the task of oversighting a forensic patient's progress. The functions of the Tribunal are to review the accused's case as soon as practical after an order is made for his detention in strict custody and they are to make a recommendation to the Minister for Health as to the accused's continued detention, care and treatment. Only if satisfied of the safety of the accused, or that any member of the public would not be seriously endangered by the accused's release may a recommendation for release be made. 30. In this accused's case that could only occur after he had finished his non parole period. If there is such a recommendation then the Minister for Health must notify the Attorney General and at the same time furnish a copy of his notification to the Director of Public Prosecutions. If the Attorney General makes no objection to a recommendation for release within thirty days after being so notified by the Minister for Health then and only then may an order be made for the accused's release provided that the Minister for Police and emergency services are informed of any date of such release. When release is not recommended the Tribunal's order continued detention, care and treatment in a place and manner specified by the Tribunal. That is a review as much as I need to do of the functions and potential outcomes available to the Mental Health Review Tribunal. (Emphasis added.)

2.3 The Yuide letter 22 In submissions the parties refer to a letter dated July 2020 that had been supplied to the Minister from Dr Jacob Yuide, Registrar of the Forensic Hospital on behalf of Dr Andrew Ellis, Consultant Forensic Psychiatrist and Clinical Director of Forensic and Long Bay Hospitals. The Yuide letter notes that Mr Toki is a forensic patient and entered the Forensic Hospital after he was found not guilty by way of mental illness for charges arising from the burning of his cells. The letter noted that his current sentences end on 17 March 2027, with a non-parole period of two years ending on 17 March 2021. The letter continues: Prior to entering in the Forensic Hospital Mr Toki was serving a sentence for the murder of his former partner. He was convicted on 10 November 2000. Mr Toki's sentence expires on 17 September 2025 with his non-parole period having expired on 17 September 2019. While in custody Mr Toki took a welfare worker hostage at the Metropolitan Remand and Reception Centre (MRRC) in Silverwater for which he was convicted of detain for advantage. Mr Toki was sentenced to eight (8) years imprisonment for this with his sentence commencing on the 18 March 2019 and ending on the 17 March 2027, with a non-parole period of two (2) years ending on the 17 March 2021. Mr Toki had not been in contact with mental health services prior to entering custody, however since his time in custody he has received diagnoses of: • Schizoaffective Disorder; • Antisocial Personality Disorder; • Substance Use Disorder; and • Post-Traumatic Stress Disorder. Mr Toki is located on the Clovelly sub-acute ward of the Forensic Hospital where he is receiving treatment for the abovementioned conditions. Mr Toki's treatment includes both psychotropic medications, along with psychosocial interventions. Mr Toki is engaging in all therapies offered in a cooperative and appropriate manner. He has been assessed as non-eligible for a pension. In the ordinary course of events a forensic patient in Mr Toki's circumstance will proceed to a rehabilitation ward within the Forensic Hospital and then be referred to a Medium Secure Forensic Psychiatry facility where escorted community leave will occur. A timeframe cannot be placed on this, as the forensic patient order is indefinite. Any move to a medium secure service will be overseen by an order of the Mental Health Review Tribunal. (Emphasis added.)

3.1 Ground 1 - decision unreasonable or made without logically probative basis 23 Mr Toki contends first that the Minister fell into jurisdictional error in that the decision was unreasonable or included findings without a logically probative basis. Three particulars are appended to this ground. 24 In ground 1(a), he contends that the Minister fell into jurisdictional error by finding at [19] that "as a New Zealand citizen, [he] would be able to live in that country, where he would have access to mental and other health services comparable with those available in Australia and would therefore have appropriate support in managing his mental health". He contends that this finding was made in the absence of any evidence of how the transition of his care between Australia and New Zealand would be coordinated, and it is likely that that transition would have a detrimental effect on his mental health. He contends that the Minister did not have evidence that New Zealand would be willing to support Mr Toki as a forensic medical health patient, and that there is a likelihood that he would be lost to medical follow up upon his arrival in New Zealand and would not participate in appropriate community reintegration. Mr Toki accepts that while general propositions as to the state of the mental health services available in New Zealand may be made by the Minister in exercising his discretion, his own position is somewhat different. He has been incarcerated for about 20 years and since about 2010 has been within the forensic justice system. In this regard Mr Toki submits that he has been highly institutionalised in Australia and that the Minister did not have evidence that New Zealand would be willing to support him as a forensic mental health patient. Upon his release into the community in Australia, he submits that he would receive the benefit of a graduated system of introduction into the community under a range of levels of supervision. The Minister did not turn his mind to whether that would be available to Mr Toki if he is returned to New Zealand. Mr Toki submits that accordingly it was unreasonable that the Minister found that he would have access to mental and other health services comparable with those available in Australia in New Zealand, absent evidence to support this assertion. 25 This ground differs from ground 1 in the originating application as filed insofar as the as filed application contended that substantially the same matters gave rise to jurisdictional error by reason of findings made without evidence, rather than that the findings were legally unreasonable. Given that the same factual basis was pleaded, that the Minister has no difficulty responding to the amended pleading, and in light of my view that it had arguable prospects of its success, I grant leave to Mr Toki to rely on ground 1(a). 26 The Minister submits that he found that Mr Toki would only be released once he was considered "safe", that the mental health care system in New Zealand was similar to Australia, and that accordingly the applicant could have appropriate support in managing his mental health, which accords with earlier decisions of this Court. The Minister submits that there is no evidence to suggest that the cancellation of Mr Toki's visa has interrupted his potential rehabilitation or that he would not be released into the community until the Mental Health Review Tribunal has determined that he is relatively safe. He relies on the Yuide letter, which was provided to the Minister in July 2020, well after the mandatory cancellation of the visa on 3 October 2018, to support the proposition that the cancellation of the visa has not affected Mr Toki's presence in the forensic hospital system, or his treatment there. He also relies on the evidence before the Minister, which was provided by Mr Toki with the assistance of a social worker, to support the proposition that he would not be released into the community until he is considered safe and so his risk of recidivism is low. This, the Minister submits, was taken into account by the Minister in considering Mr Toki's return to New Zealand. 27 The essence of ground 1(a) as advanced by Mr Toki in submissions is that the Minister erred by assuming that Mr Toki would benefit from access to "comparable mental and other health services" in New Zealand to those available in Australia. He submits that the Minister did not have evidence before him that New Zealand would be willing to support him as a forensic patient and that there is a likelihood that he would be lost to medical follow up after his arrival in New Zealand. 28 The Minister relied on his own knowledge of conditions prevailing in New Zealand. That approach was consistent with a body of recent authority: Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 at [69] (Robertson J); Anaki v Minister for Immigration and Border Protection [2018] FCA 77 at [24]-[25] (Burley J); Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 144; 278 FCR 386 at [5] (Besanko J) and at [33] (Kerr and Charlesworth JJ); and Navoto v Minister for Home Affairs [2019] FCAFC 135 at [77]-[78] (Middleton, Moshinsky and Anderson JJ). 29 This approach is supported by the recent High Court case of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 at [17], [20] (Viane HC) (Keane, Gordon, Edelman, Steward and Gleeson JJ), where the Court unanimously held that a finding of fact made by the Minister must be based on some evidence or other supporting material unless the finding is made in accordance with the Minister's personal or specialised knowledge or by reference to what is commonly known. There is no express requirement in s 501CA(4)(b)(ii) of the Act that the Minister disclose whether a material finding was made from personal knowledge, and where no evidence is identified in the Minister's reasons it can be assumed that the findings proceeded from the Minister's personal or specialised knowledge or were matters commonly known; Viane HC at [18], [20]. Furthermore, the Minister is free to adopt the accumulated knowledge of the Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs in exercising the power conferred by s 501CA(4) of the Act: Viane HC at [19], [28]. Where it may be assumed that the Minister made findings based on personal knowledge or specialised knowledge or matters commonly known it is for the applicant to demonstrate that the findings made are incorrect; at [8], [27]. 30 In Uelese, Robertson J said: 68. When addressing the extent of impediments if the applicant were removed, the Tribunal noted that there was no specific evidence of any social, medical and/or economic support available to Mr Uelese in either New Zealand or Samoa, but said: "I take into account that at least in New Zealand Mr Uelese would have access to government benefits similar to those available to him in Australia". 69. In my opinion, that statement is no more than a broad proposition as to the availability of government benefits in New Zealand and not one that required evidence as to the amount of a benefit, the terms and conditions of that benefit or the eligibility criteria for that benefit. The applicant did not put forward to the Tribunal that the non-availability of welfare benefits constituted an impediment which he may face if removed from Australia. I also note that the applicant before me has not put forward any material which suggests that the Tribunal was mistaken in its statement. In any event, I am not satisfied that, in the circumstances, the Tribunal's statement could constitute jurisdictional error. 31 Mr Toki sought to distinguish these cases by reference to the particular circumstances of his incarceration as a forensic mental health patient. In his submission to the Minister Mr Toki said: As a Forensic Patient [I] will have a slow transition through units of Forensic Hospital with increasing exposure to less restrictive environments with constant monitoring and participation and engagement in therapeutic interventions. Movement through each unit at the Forensic Hospital will take a period of 3 or 4 years at least, before moving onto a Medium Secure Unit, which would not happen until multiple treating teams and the Mental Health Review Tribunal are agreeable to my level of risk to myself and the community at that time. Even in the community Forensic Patients are managed under Community Treatment Orders with strict restrictions on conduct, medication, location, community participation, travel, socialising, relationships and engagement with mental health support services. 32 Two points may be made in rejecting this aspect of Mr Toki's application. First, the premise underlying Mr Toki's submission is not correct. The evidence indicates that he will not be released from the penal justice system of New South Wales until the Tribunal certifies that he is no longer a forensic patient. The Yuide letter indicates that Mr Toki must progress through several phases of treatment if he is to reach a stage where his mental health is such that he may be released into the community. He is presently in a subacute ward from where he may proceed to a rehabilitation ward. He must then be referred to a Medium Secure Forensic Psychiatry facility. He may progress to "escorted community leave". He may never reach either stage. Because the forensic patient order is indefinite, the duration of his detention is contingent upon the Tribunal making a positive assessment as to his condition. Each phase may take 3 to 4 years. 33 The Minister in his reasons accepts that Mr Toki has very serious mental health issues. However, he notes that Mr Toki will not be released from criminal custody until the Tribunal is satisfied that it is "safe to do so". 34 Secondly, Mr Toki has not established that the finding made by the Minister to the effect that he will have access to mental and other health services comparable with those available in Australia and would therefore have an appropriate support in managing his mental health was incorrect. 35 In such circumstances it cannot be said that the Minister failed to take into consideration matters properly before him, or made a finding that was not open to him. It is not apparent that there has been an underlying jurisdictional error in the decision-making process in the manner for which Mr Toki contends within Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [27]-[28] (French CJ), at [72] (Hayne, Kiefel and Bell JJ), Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Allsop CJ, Robertson and Mortimer JJ) at [43]. 36 Accordingly, I reject ground 1 (a). 37 In ground 1(b) Mr Toki contends that the statement made by the Minister at [16] to the effect that there was no evidence other than Mr Toki's own statements that he has family support in Australia "as no family members have provided submissions for the current consideration" was incorrect. In this regard he relies on a document that was before the Minister entitled "Monthly Progress Report March 2020" which states under a heading "Notable Progress", in one of 12 bullet points, "Ongoing regular contact with family, including having an AVL with sister and her family". "AVL" may be understood to mean "audio visual link". 38 This ground was not included in the original application but the Minister had no difficulty addressing it and it was sufficiently arguable. I grant leave to amend to include it in the application. However, in my view this ground cannot succeed, because upon proper scrutiny the statement made by the Minister is correct. The evidence discloses that there was in fact no submission or representation provided by family members for his consideration. The single statement in the Monthly Progress Report is to record "regular contact" via an AVL link. This does not provide material evidence of family support for Mr Toki. This ground must be dismissed. 39 In ground 1(c) Mr Toki contends that the Minister's decision was unreasonable when considered overall, in the manner set out in Li, namely that an inference of unreasonableness may be objectively drawn from the outcome even where a particular error in reasoning cannot be identified, see also Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [6], [7] (Allsop CJ), at [90]-[91] (Wigney J)), and at [61] (Griffiths J). 40 Mr Toki relies on the following factors in support of this contention: (i) That he had come to Australia at about the age of 15, and had therefore lived in Australia from the age of 15 to 54 at the time of the decision; (CB 92-93) (ii) That all of his immediate family and many of his extended family resided in Australia; (CB 10, [22]) (iii) That he had a long history of serious mental illness; (iv) That he had suffered seriously while mentally ill in prison; (Attachment F, 42-59, CB 74-78) (v) That he has made significant progress towards rehabilitation. (Attachments J, L and M, CB 112-127, 130-139) (vi) That if the cancellation of his visa were revoked, and he remained in Australia and able to progress towards release, he would not be released unless and until the Mental Health Review Tribunal judged that this would be safe. (Attachment F, [28]-[30], CB 71-72) (vii) That his many years in prison, noted by the Minister, mean that he is highly institutionalised and will need assistance to adjust to life at large in the community. (viii) That if the cancellation of the visa was not revoked, the Applicant would not progress to full rehabilitation and would very likely not receive the care he needs for his mental health, whether in New Zealand or in the Cook Islands. (Attachment N, CB 140) 41 As noted at [13] above, in light of my ruling in relation to the affidavit of Dr Pulley, Mr Toki no longer pressed proposed particular 1(c)(vii). 42 Mr Toki contends that in all of the circumstances set out above, it was unreasonable for the Minister to conclude that the cancellation should not be revoked. 43 I am unable to conclude that the decision of the Minister fell outside the bounds of the decisional freedom left to him by the scheme of the Act. 44 In BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; 277 FCR 420 (White, Wigney, Bromwich JJ) the Full Court summarised the relevant principles: 129. The relevant principles in relation to legal unreasonableness have been given detailed consideration and analysis in many cases in recent times: see, in particular, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28; Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81; [2017] FCAFC 200; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; Minister for Immigration and Border Protection v Haq (2019) 267 FCR 513; [2019] FCAFC 7; Singh v Minister for Home Affairs [2020] FCAFC 7; BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54. 130. It is unnecessary to add significantly to what has already been written on the topic. It is sufficient to provide a brief summary of the general principles that emerge from those cases. The general principles are now so well accepted in the authorities that it is unnecessary to provide specific case citations. Following are the main points. 131. First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making. 132. Second, the Court's task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory. It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision's reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker. Nor does it involve the Court remaking the decision according to its own view of reasonableness. 133. Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision-making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an "outcome focused" conclusion without any specific jurisdictional error being identified. 134. Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that, within the boundaries of power, there is an area of "decisional freedom" within which a decision maker has a genuinely free discretion. Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness. Such a decision falls within the range of possible lawful outcomes of the exercise of the power. It is only if the outcome falls outside the area of decisional freedom that it can be said to be legally unreasonable. 135. Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the provisions of the statute which confer the relevant power. The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope, and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making. The evaluation is also likely to be fact-dependant and to require careful attention to the evidence. 136. Sixth, where reasons for the decision are available, the reasons are likely to provide the main 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. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the Court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes. 137. Seventh, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations, or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary. That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. The expressions that have been utilised in past cases include decisions which are "plainly unjust", "arbitrary", "capricious", "irrational", "lacking in evident or intelligible justification", and "obviously disproportionate": Muggeridge at [65]. It must be emphasised, however, that the task is not an a priori definitional or "checklist" exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope, and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes. 138. Eighth, defective, illogical, or irrational reasoning or fact finding may support a finding that the ultimate decision or exercise of discretion was legally unreasonable, particularly where the illogicality relates to a critical matter upon which the decision or exercise of discretion turned. Muggeridge was such a case. That provides an appropriate segue to a consideration of the principles relating to the finding of jurisdictional error on the basis of illogicality or irrationality. 45 The Minister in terms took into account the age that Mr Toki came to Australia and the time he spent here, noting at [21] that this was to be afforded less weight because of his repeated and often violent convictions. He noted that Mr Toki's removal from Australia would leave him without familial support (at [15]), but that no statements were made from his immediate family by way of submission in the present application (at [16], [25]), which diminished the weight that he afforded to this factor. In this regard, as I note in relation to proposed grounds 1(b) and 2(b), the Minister had before him evidence of Mr Toki's sister's contact by AVL in the Monthly Progress Report, but the Minister was not obliged to mention in the decision all items of evidence to which the materials referred, and it was open for him to make the observation that he did at [16] and to attribute less weight to a lack of familial support if deported because Mr Toki did not appear to have a significant measure of familial support in Australia. 46 The Minister also made repeated reference to Mr Toki's long history of mental illness (at [17], [18], [29], [42], [43] - [47]) and acknowledged that he had made significant progress towards rehabilitation (at [48], [49]). He noted that he would not be released until the Tribunal considered that his various conditions had reached a state that it was relatively safe for it to do so. 47 In oral submissions in chief Mr Toki submitted that the effect of cancellation of the visa would be that he would be deprived of the opportunity to make a recovery to the point of being released into the community because he would never progress to a Medium Secure Forensic Psychiatry facility or the stage of a supervised release contemplated in the Yuide letter and may as a result remain a Forensic Mental Health Patient indefinitely. 48 Mr Toki submitted that by operation of s 189(1) of the Act the Department is obliged to place Mr Toki in immigration detention upon his release into the community. Mr Toki submits that the result will be that he will never be released to a Medium Secure Forensic Psychiatry facility, will not have the escorted community leave, and accordingly will never be released from custody. 49 This submission proceeds on an incorrect understanding of the intersection between the penal justice system and the Act. 50 Pursuant to s 189(1) of the Act, if an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person. An unlawful non-citizen is a non-citizen in the migration zone who does not hold an effective visa: ss 13 and 14. The effect of the cancellation of a visa is to render a person an unlawful non-citizen: s 15. The migration zone means the area consisting of the States, Territories, Australian resource installations and Australian sea installations: s 5. Relevantly, correctional facilities are not excluded from the definition of migration zone. Section 196 provides for the duration of the immigration detention. 51 Pursuant to s 254 of the Act, if a deportation order is made in relation to a person who is in the custody of an authority of the Commonwealth, a State or a Territory, a notice may be given to that person stating that upon release from custody that person will be kept in immigration detention. There is no evidence that such an order has been made to date in respect of Mr Toki. 52 In Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333 (Kiefel CJ, Bell, Keane and Edelman JJ) the High Court made the following relevant observations: 56. … A cancellation decision has the immediate effect that the person's status is changed from that of a lawful non-citizen to an unlawful non-citizen. Section 501(3A) merely provides the basis for the change in status. It does not authorise detention. It is that new status that exposes the person to detention under s 189. The person is liable to removal from Australia and to detention for that purpose from the time that a cancellation decision is made. The possibility that a cancellation decision might be revoked, so that that decision may be taken not to have been made, does not alter the fact that the person retains the status of an unlawful non-citizen for the whole of the period in question, from the time of the cancellation decision to the making of the revocation decision. … 59. Criminal detention cannot be "converted" into immigration detention. A person is imprisoned by order of the court which authorises his or her detention by the State following conviction for an offence against the laws of the State. A person so detained cannot be said to be detained by an officer acting under s 189 of the Migration Act. 60. The possibility that, in the circumstance to which the plaintiff refers, a person might be a prisoner serving a term of imprisonment for an offence and an unlawful non-citizen liable to be detained and removed from Australia as soon as reasonably practicable points to a possible tension between the provisions of Commonwealth, State and Territory laws and the Migration Act. 61. The Migration Act contains provisions intended to address that problem. The provisions of Pt 2, Div 4 permit a non-citizen to stay in Australia for the purposes of the administration of justice (s 141), which is defined to include punishment, by way of imprisonment of a person, for the commission of an offence (s 142). The focus of the Division is on maintaining the presence in Australia of persons who would not otherwise be permitted to enter or remain here; Minister for Immigration and Citizenship v Zhang (2009) 179 FCR 135 at 146 [97]. 62. It is not necessary to detail each of the provisions of Pt 2, Div 4. It is sufficient to observe that they involve the grant by the Commonwealth Attorney-General or an official of a State of a criminal justice certificate (s 147, 148) which has the effect that, during its currency, the person is not to be removed or deported from Australia (s 150) and the issue of a warrant by a court to stay the removal or deportation of a non-citizen (s 151). If a criminal justice certificate or a criminal stay warrant is in force the Minister may consider the grant of a criminal justice visa (s 159(1)). The possibility of the concurrent operation of the Migration Act with criminal detention does not arise in the plaintiff's case, since it is acknowledged that he was taken into immigration detention at the conclusion of his non-parole period. (Citations omitted save for the parenthetical references in [61], [62].) 53 The effect of the foregoing is that Mr Toki will not be removed to immigration detention or deported until he has completed his present custodial sentence. Having regard to the findings made in relation to his mental illness, he will not be released until the Tribunal considers that it is appropriate for this to take place. During the hearing counsel for the Minister obtained instructions to confirm that while Mr Toki is still serving his sentence, he would not be deported. Escorted community leave of the type contemplated in the Yuide letter arises prior to a Tribunal determination that the sentence has been concluded, and will not be a trigger for detention or deportation. In this regard see also McCafferty v Minister for Immigration & Ethnic Affairs [1995] FCA 1099; 61 FCR 275 at 282 (Davies J). 54 It is apparent that Mr Toki's submission proceeds on the incorrect premise that he will cease to be a forensic patient unless the cancellation of his visa is revoked. This is not the case. He will remain a forensic patient until the Tribunal determines that it is no longer necessary. He will not be deprived of the opportunity to undergo escorted community leave, which will be supervised by the Tribunal. The Tribunal will also determine whether he is medically eligible for release. Accordingly, the duration of Mr Toki's confinement as part of the criminal justice and forensic mental health system will not be curtailed by reason of the decision of the Minister. This was apparently contemplated by the Minister in his reasons at [46]. Furthermore, as the Minister submits, the Yuide letter was sent a considerable period after Mr Toki's visa was cancelled. It is apparent from its contents that Mr Toki continued to receive treatment, notwithstanding the cancellation of his visa. 55 Having regard to the evidence available to the Minister and the matters that he took into consideration to which I have referred in [46] above, I am not satisfied that the outcome of his decision was such that it can be characterised as legally unreasonable. 56 Finally, I should note that in his reply submissions Mr Toki contended that should the Tribunal approve Mr Toki's release into the community under a "community treatment order" then Mr Toki will be at risk of being detained in Australia and deported to New Zealand. Mr Toki contends that by operation of s 189 of the Act and s 53 of the Mental Health Act 2007 (NSW), the Department would have no choice but to deport him. 57 Section 51(1) of the Mental Health Act provides that a "community treatment order authorising the compulsory treatment in the community of a person may be made by the Tribunal". Section 53 provides that the Tribunal is to determine whether the affected person is a person who should be subject to the order. For that purpose, the Tribunal is to consider, pursuant to s 53(2): (a) a treatment plan for the affected person proposed by the declared mental health facility that is to implement the proposed order; (b) if the affected person is subject to an existing community treatment order, a report by the psychiatric case manager of the person as to the efficacy of that order; (c) a report as to the efficacy of any previous community treatment order for the affected person; (d) any other information placed before the Tribunal. 58 Section 53(3A) provides that if the affected person has within the last 12 months been a forensic patient, the Tribunal is not required to make a determination under subsection 53(3)(c) but must be satisfied that the person is likely to continue in or to relapse into an active phase of mental illness if the order is not granted. 59 It may be noted that s 53 of the Mental Health Act does not affect the position of a forensic patient. A community treatment order may apply to a person who has never been a forensic health patient. 60 It is apparent from the provisions of the Act and authorities to which I have referred in [52]-[53] above that whilst Mr Toki remains within the criminal justice system, he will not be placed in immigration detention or deported. However, if he is released then he will be exposed to being deported. Mr Toki postulates that he may be released conditionally on the basis that he comply with the conditions of a community treatment order. However, the submission advanced by Mr Toki before the Minister was that he would be subject to such an order as a forensic patient. The Minister was not called upon to consider the circumstance now raised. 61 Accordingly, for the reasons set out above, ground 1(c) has not been established.

3.2 Ground 2 - failure to consider relevant considerations 62 In ground 2 of his amended originating application, Mr Toki alleges that the Minister fell into jurisdictional error for failing to consider three relevant considerations. 63 In ground 2(a) Mr Toki contends that the Minister ignored key information about the nature of his forensic mental health status and the likely trajectory of his treatment. He contends that the Minister did not take into account that his rehabilitation and treatment as a Forensic Mental Health Patient without a visa would be paused once he transfers from the Forensic Hospital to a Medium Secure Forensic Psychiatry facility in that he would not be permitted to have any access to the community, although this is a major part of the treatment and progress to rehabilitation in the Medium Secure Forensic Psychiatry facility. He contends that if the cancellation of his visa is not revoked, then as an unlawful non-citizen he would not be permitted access to the community and so would not be able to complete his rehabilitation and accordingly would be detained longer than clinically indicated in a Medium Secure Forensic Psychiatry facility. The consequence would be that he may be detained for longer, and potentially indefinitely because he could not meet the goals of his mental health treatment. He submits that the Minister did not take this into account. 64 The Minister submits that this ground is factually misconceived because there was no evidence before the Minister to support the proposition that Mr Toki would not be able to complete his rehabilitation in a Medium Secure Forensic Psychiatry facility if his visa was cancelled, and no such representation was made to the Minister. 65 In Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 (Burley, Colvin and Jackson JJ), the Full Court observed at [27]: Considered within the statutory context, the Minister's statutory power conferred by s 501CA(4) has been determined to have the following characteristics: (1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked. (2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration. (3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction. (4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute. (5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim. (6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation. As to these matters, see: Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531 at [66]-[68], [73]-[74] (Colvin J, Reeves J agreeing); Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [41]-[45] (Rares and Robertson JJ), [62]-[63] (Flick J); Navoto v Minister for Home Affairs [2019] FCAFC 135 at [85]-[89] (Middleton, Moshinsky and Anderson JJ); Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [34]-[41] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ); GBV18 v Minister for Home Affairs [2020] FCAFC 17; (2020) 274 FCR 202 at [31]-[32] (Flick, Griffiths and Moshinsky JJ); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; (2020) 280 FCR 178 at [15] (McKerracher, Kerr and Wigney JJ); and Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 at [3]-[4] (Katzmann J), [100] (O'Bryan J), [51] (Derrington J in dissent). 66 The difficulty for Mr Toki arising from this ground is that he has not established that he made any representation that to the effect that he would not be able to complete his rehabilitation as a result of his visa being cancelled. The Minister accurately summarised the submissions made before him in his decision at [12]. No submission was made to the Minister to the effect that if the cancellation of his visa is not revoked, then as an unlawful non-citizen he would not be permitted access to the community and so would not be able to complete his rehabilitation and accordingly would be detained longer than clinically indicated in a Medium Secure Forensic Psychiatry facility. The submission made was that Mr Toki is likely to remain in the Forensic Hospital until such time that the Mental Health Review Tribunal is satisfied that his level of risk can be managed in a Medium Secure Forensic Psychiatry facility. Thereafter, as a forensic patient, upon release to the community he will be subject to a community treatment order, with restrictions on matters going to his conduct, medication and engagement with mental health services. 67 It was in that context that the Minister determined at [19] that Mr Toki would have access to comparable mental and other health services in New Zealand upon his release. The Minister also separately considered the submission advanced by Mr Toki that he will present a low risk of reoffending because of the restrictions that he will be under as a forensic patient in the community and noted that he would not be released until the Parole Board and the Tribunal considered that his various conditions had reached a state that made it relatively safe to do so. As noted earlier, that submission was advanced on the basis of the hypothesis that if Mr Toki's cancellation were to be revoked, then he would present a low risk of reoffending. 68 However, no representation was made to the Minister that the effect of non-revocation would be that Mr Toki's treatment would be cut short such that he would not complete his rehabilitation. Furthermore, as I have noted in section 3.1 above, the factual premise for the submission - that Mr Toki would not be able to complete his treatment as a forensic patient - is not made out. Accordingly, even had I found that the Minister had received a relevant representation from Mr Toki going to this subject, the failure on the part of the Minister to consider it could not have been material; see MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [37] - [40] (Kiefel CJ, Gageler, Keane and Gleeson JJ). 69 Accordingly, this ground is not made out. 70 In ground 2(b), as for ground 1(b), Mr Toki refers to the Minister's reasons at [16]. He contends that the Minister failed to take into consideration the content of the Monthly Progress Report, and its reference to the AVL contact with his sister. He submits that the Minister failed to consider a relevant consideration in the form of the evidence of "ongoing regular contact with family". 71 It is the case that Mr Toki made a representation to the Minister to the effect that his removal from Australia would result in his isolation from all his family and friends (see the decision at [12]). That factor was considered at [16]. However, no specific representation was made to the effect that the Minister should consider the evidence of the AVL contact with his sister. It cannot be said that that specific reference formed a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked; Bettencourt at [27]. Nor, for the reasons set out in relation to ground 1(b) could it be said that, had it been mandatory for the Minister to consider that evidence, doing so would have had a material effect on the outcome of the Minister's reasons. 72 Accordingly, ground 2(b) must be dismissed.

4. DISPOSITION 73 I grant leave to Mr Toki to rely on amend his originating application to include grounds 1(a), 1(b), 1(c)(i)-(vi) and (viii), 2(a) and 2(b). However, none of the grounds advanced has been made out. The appropriate order is that the amended application be dismissed and that Mr Toki pay the Minister's costs. I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley.