Vunisa v Minister for Home Affairs

THE MINISTER'S DECISION 4 As mentioned, the Minister decided not to revoke the cancellation. The Minister was not satisfied the applicant passed the character test and, accordingly, s 501CA(4)(b)(i) of the Act was not met. The Minister then considered whether, for the purposes of s 501CA(4)(b)(ii), there was "another reason" to revoke the visa cancellation. The Minister took into account a number of matters. 5 First, the Minister took into account the best interests of minor children, specifically the applicant's five grandchildren, in respect of each of whom the Minister accepted the applicant had a relationship, but not a parental one: [11]-[18]. He referred to the evidence and submissions made by members of Mr Vunisa's family, ultimately concluding at [18]: I accept that Mr VUNISA has a strong relationship with his grandchildren, despite not being physically available to them (apart from occasional prison visits) for most or all of their lifetimes to date. Accordingly I find that it is in the best interests of Mr VUNISA's grandchildren that I revoke the original decision to cancel Mr VUNISA's visa. However, the weight I give this consideration is limited by the fact that the children have their parents and all other family members available to them, so while they would suffer emotional hardship in his absence, they would not be denied the presence of someone who is critically important for their development. Furthermore they could still have telephone or electronic contact with him from Fiji, as they have done from prison. 6 Secondly, the Minister considered the extent of impediments if the applicant were to be removed to Fiji, accepting he would face "serious psychological hardship" if removed there, but that he would be able to access medical facilities and support to the same extent as other Fijian citizens: [19]-[24]. The Minister's conclusion at [24] was: I accept that Mr VUNISA would face serious psychological hardship if removed to Fiji and thereby being separated permanently from his family, with whom he maintains very close contact. I further accept that his difficulties would be exacerbated by the absence of any personal support network there, his family members having died since he lived there many years ago. I consider that he could access medical facilities and support to the same extent as other citizens of Fiji, but I accept that it would be harder for him to obtain the medical treatment he needs for his permanent conditions of diabetes and high cholesterol, as well as his alcoholism. 7 Thirdly, the Minister took into account the strength, nature and duration of the applicant's ties to Australia, giving positive weight to the applicant's ties to the community through his family, and employment history, and acknowledging the community's "higher tolerance" for offending conduct in circumstances where the applicant had lived in Australia for most of his life: [26]-[38]. The Minister referred at [37] to the fact that, Mr Vunisa had done voluntary work for the Salvation Army and Saint Vincent De Paul , as well as with the disabled and the homeless. The Minister's conclusion at [38] was: I find that Mr VUNISA has been making a positive contribution to the community outside the context of his offending and I have taken this into account; I also recognise the effect of non-revocation for his family members in Australia. 8 Fourthly, the Minister took into account the protection of the Australian community. In relation to his criminal conduct, the Minister found that the applicant's offending, specifically his violent offending in 2012, "must be regarded as very serious examples of violence and domestic violence offences": [39]-[51]. The Minister assessed the risk to the Australian community as "ongoing", albeit "less than before", taking into account Mr Vunisa's representations of his remorse, family support, steps towards rehabilitation, in particular steps to address his drinking of alcohol, his conduct in prison, and other assessments of his risk of recidivism: [52]-[78]. 9 Having considered these matters, the Minister was not satisfied that there was "another reason" why the decision to cancel the applicant's visa should be revoked. He reached this view after balancing the various matters to which he had regard, saying: 82. In considering, in light of Mr VUNISA's representations, whether I was satisfied that there is another reason why the original decision should be revoked, I gave primary consideration to the best interests of Mr VUNISA's grandchildren. I found that their best interests would be served by the revocation of the original decision. 83. In addition, I have considered the length of time Mr VUNISA has made a positive contribution to the Australian community and the consequences of non-revocation of the original decision for his other family members, and the extent of impediments that Mr VUNISA would face if he were removed to Fiji. 84. On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crimes committed by Mr VUNISA, some of which are of a violent nature. 85. Further, I find that the Australian community could be exposed to significant harm should Mr VUNISA reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr VUNISA. 86. Noting that Mr VUNISA has lived in Australia for most of his life from a young age, I have taken into account that Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to him than it would otherwise. However, I am cognisant that where significant harm could be inflicted on the Australian community, even other strong countervailing considerations may be insufficient for me to revoke the decision to cancel the visa. 87. 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 VUNISA represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his grandchildren, as a primary consideration, and any other considerations as described above. These include his lengthy residence and ties, employment, volunteer work and strong family ties to Australia, and the hardship Mr VUNISA, his family and social networks will endure in the event the original decision is not revoked. 88. Having given full consideration to all of these matters, I am not satisfied, for the purposes of s501CA(4)(b)(ii), that there is another reason why the original decision under s501(3A) to cancel Mr VUNISA's Class BB Subclass 155 Five Year Resident Return 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 VUNISA's Class BB Subclass 155 Five Year Resident Return visa remains cancelled.

THE APPLICATION FOR EXTENSION OF TIME 10 Mr Vunisa filed his application for an extension of time on 26 November 2020. He was required to file his application for judicial review under s 476A(1) of the Act within 35 days of date of the written notice of the Minister's decision: s 477A(1). Mr Vunisa was about a week late. Whilst no explanation has been given, the Minister concedes that he would suffer no prejudice if an extension of time were to be granted. I would not dismiss the application on the basis of delay, or the lack of explanation for it. The predominant consideration in this case is whether, if an extension were granted, the appeal would have any merit. 11 The grounds upon which Mr Vunisa relies are set out in his affidavit: (1) the Minister's decision was unreasonable; (2) the Minister did not properly apply s 501CA and s 501CA(4) of the Act; (3) the Minister failed to take relevant consideration into account; (4) there was insufficient evidence or no evidence to support various findings made by the Minister; (5) the Minister failed to properly exercise its discretion under s 501CA and s 501CA(4) of the Act; (6) the Minister's decision involved an error of law; (7) in making the decision, the Minister did not comply with the rules of natural justice and/or Mr Vunisa was denied procedural fairness.

Ground 1: Unreasonableness 12 In Singh v Minister for Home Affairs [2019] FCAFC 3; 267 FCR 200 at [61], the Full Court (Reeves, O'Callaghan and Thawley JJ) stated: The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 at [54]-[60] (Gageler J); [78]-[79] (Nettle and Gordon JJ); [135] (Edelman J). Such a conclusion might be drawn, for example, if it: (1) is "illogical", though an inference of unreasonableness will not be supported merely because a decision appears to be irrational: SZVFW at [10] (Kiefel CJ); [82] (Nettle and Gordon JJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68] (Hayne, Kiefel and Bell JJ); (2) "lacks an evident and intelligible justification": Li at [76] (Hayne, Kiefel and Bell JJ); SZVFW at [10] (Kiefel CJ), [82] (Nettle and Gordon JJ); (3) is plainly unjust, arbitrary, capricious or lacking in common-sense: Stretton at [11] per (Allsop CJ, with whom Griffiths and Wigney JJ relevantly agreed at [87], [90]); Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 at [35] (Flick, Perry and Charlesworth JJ). 13 Legal unreasonableness may also be found where 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": Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 at [83] (Nettle and Gordon JJ). It is apparent from these examples that a decision might be found to be unreasonable either: (1) after identification of specific error shown to affect the decision; or (2) by reference to the outcome or result of the decision: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [12] (Allsop CJ). 14 The Minister emphasised that the test has been described as "stringent" or "extremely confined" - see: SZVFW at [11] (Kiefel CJ), [52], [70] (Gageler J) and [135] (Edelman J). 15 Mr Vunisa did not point to any particular aspect of the Minister's decision which was said to involve error of a kind which might lead to a conclusion that the power was exercised in breach of the implicit condition that it be exercised reasonably. Having reviewed the reasons, none is apparent. Nor is the outcome of the decision one which suggests that it might have been reached through a breach of the implied condition to exercise the power reasonably. Accordingly, the first proposed ground lacks sufficient merit to warrant an extension of time.

Grounds 2 and 5: Misapplication of ss 501CA and 501CA(4) 16 Mr Vunisa's contention that the Minister misapplied s 501CA and s 501CA(4) was unexplained. The Minister's reasons disclose a proper understanding of the statutory framework and a conscientious application of it. These proposed ground lacks sufficient merit to warrant an extension of time.

Ground 3: Failure to take into account a relevant consideration 17 Mr Vunisa did not identify a mandatory relevant consideration which the Minister arguably failed to take into account. The High Court observed in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403; [2021] HCA 41 at [13]: … What is "another reason" is a matter for the Minister. Under this scheme, Parliament has not, in any way, mandated or prescribed the reasons which might justify revocation, or not, of a cancellation decision in a given case. It follows that there may be few mandatorily relevant matters that the Minister must consider in applying s 501CA(4)(b)(ii) … 18 That is not to say that there can be no mandatory relevant considerations pertaining to an exercise of power under s 501CA(4). It has been recognised that the visa applicant's representations as a whole must be taken into account: Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [55], [56] (Robertson J); Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [41] (Besanko, Barker and Bromwich JJ); Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [34(e)]. The Minister took into account Mr Vunisa's representations, summarising the main points in them at [12] of his reasons and addressing them in detail in the way previously mentioned. This proposed ground has insufficient merit to warrant an extension of time.

Ground 4: No evidence 19 This ground was not explained by Mr Vunisa. No specific conclusion was identified as one which could only lawfully be reached on the basis of the existence of some probative material - see: Viane at [17]. The Minister took into account the applicant's representations. The Minister placed predominant weight on what he considered to be the unacceptable risk Mr Vinusa presented to the community. He took into account an "ongoing" risk of reoffending, and the prospect that any future offending would have serious and harmful consequences for the Australian community. The Minister identified the materials upon which these conclusions were drawn. His conclusions constituted an evaluative assessment which was called for under s 501CA(4)(b)(ii). The Minister's evaluation was based upon a recognition of human behaviour from a modest familiarity with human experience. This ground has insufficient prospect to warrant an extension of time.

Ground 6: Error of law 20 Mr Vunisa's contention that the Minister's decision was affected by an error of law was unexplained and does not add to the other grounds of challenge in any meaningful way.

Ground 7: Denial of procedural fairness 21 Procedural fairness with respect to an exercise of power under s 501CA(4) is prescribed by the particular legislative scheme. Mr Vunisa did not put forward any particular matter which operated to deny an opportunity which was either expressly or implicitly contemplated by the statutory scheme. Nor did Mr Vunisa identify any practical injustice which resulted from the procedures followed for determination of this application for revocation. It follows that this ground has insufficient prospect to warrant an extension of time

CONCLUSION 22 Mr Vunisa emphasised in his oral submissions the extent of community service which he had provided. He emphasised his strong connections with his family and with the community. Mr Vunisa expressed genuine remorse and contrition for the harm he had caused in the past. It is desirable to make it clear for Mr Vunisa's benefit that the role of this Court is confined to the identification and correction of jurisdictional error on the part of the Minister. This Court cannot make a new decision on the merits. The substance of the matters that Mr Vunisa emphasised were taken into account by the Minister in considering the representations which Mr Vunisa had made. The Minister's evaluation of the material was that, on balance, there was not "another reason" to revoke the visa cancellation. There is no reasonable argument that this evaluation was one which was affected by jurisdictional error. There is no reasonable argument that the Minister exceeded the decision-making authority conferred on him by the Migration Act. There is insufficient prospect that Mr Vunisa can establish that the Minister's decision was affected by jurisdictional error to warrant an extension of time in which to bring a judicial review application. 23 The application for an extension of time must be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thawley.