Hunt v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Hunt v Minister for Home Affairs [2021] FCA 507

File number(s): QUD 285 of 2020
Judgment of: COLLIER J
Date of judgment: 14 May 2021
Catchwords: MIGRATION – judicial review of the Minister’s decision to cancel applicant’s visa on character grounds pursuant to s 501(2) of the Migration Act 1958 (Cth) – where applicant was convicted of a range of criminal offences, including one of manslaughter – where applicant was a citizen of New Zealand – whether the respondent failed to engage in a genuine consideration of the permanent exclusion of the applicant from Australia that would flow from a cancellation decision – whether the respondent has genuinely considered the human consequences of the permanent exclusion of the applicant by cancellation of his visa, referable to his ties to Australia – where Minister delayed in cancelling the applicant’s visa – undisturbed passage of seven years since last offending – consideration of the broader consequences of the elapse of this lengthy period of time.
Legislation:  Migration Act 1958 (Cth) ss 5, 198, 501(2), 501E
Cases cited:

CGA15 v Minister for Home Affairs (2019) 268 FCR 362; [2019] FCAFC 46

Gater v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 104

Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628; [2018] FCAFC 225

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34

Meyrick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 209

Minister for Home Affairs v Brown (2020) 275 FCR 188 [2020] FCAFC 21

Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28

 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 610; [2010] HCA 16

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63

Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 165
Division: General Division
Registry: Queensland
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 75
Date of hearing: 13 April 2021
Solicitor for the Applicant: Mr J McComber of Sentry Law
Counsel for the Respondent: Mr J Byrnes
Solicitor for the Respondent: Sparke Helmore

ORDERS

QUD 285 of 2020
BETWEEN:

HAMISH HANNAMAN HUNT

Applicant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

ORDER MADE BY:

COLLIER J

DATE OF ORDER:

14 MAY 2021

THE COURT ORDERS THAT:

1.An order in the nature of certiorari issue quashing the Respondent’s decision dated 22 July 2020 to cancel the Applicant’s visa under s 501(2) of the Migration Act 1958 (Cth).

2.An order of mandamus issue to the Respondent requiring the Respondent to consider the cancellation of the Applicant’s visa under s 501(2) of the Migration Act 1958 (Cth) in accordance with law.

3.The Respondent…

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Details
Case
[2021] FCA 507
Decision Date

CaseChat Overview and Summary

In the case of Hunt v Minister for Home Affairs, the applicant, a New Zealand citizen residing in Australia since 1996, challenges the Minister for Home Affairs' decision to cancel his visa on character grounds. The applicant had committed multiple criminal offences, including manslaughter, between 2007 and 2012. The Federal Court was tasked with reviewing the Minister's decision to cancel the applicant's visa under section 501(2) of the Migration Act 1958 (Cth). The key legal issues were whether the Minister failed to genuinely consider the significant matters raised by the applicant, specifically the lengthy period since his last criminal offence and the permanent exclusion from Australia, and whether the Minister's decision was illogical or irrational.

The Court found that the Minister did not genuinely consider the significant matters raised by the applicant, particularly the substantial period that had elapsed since his last criminal offence and the implications of permanent exclusion from Australia. The Court held that the Minister's failure to consider the length of time since the last offence was unreasonable, as no reasonable decision-maker could have assessed the risk of reoffending without regard to this factor. Additionally, the Minister's conclusion that the applicant posed an unacceptable risk of harm to the Australian community was deemed illogical and irrational in the absence of any quantification or comparison of this risk. Consequently, the Court quashed the Minister's decision and ordered a reconsideration in accordance with the law. The Minister was also ordered to pay the applicant's costs.

Orders

Orders of the court

1. An order in the nature of certiorari issue quashing the Respondent’s decision dated 22 July 2020 to cancel the Applicant’s visa under s 501(2) of the Migration Act 1958 (Cth).

2. An order of mandamus issue to the Respondent requiring the Respondent to consider the cancellation of the Applicant’s visa under s 501(2) of the Migration Act 1958 (Cth) in accordance with law.

3. The Respondent pay the Applicant’s costs of this application, to be taxed if not otherwise agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The Minister submits that the application before the Court be dismissed with costs.BACKGROUND Mr Hunt is a citizen of New Zealand, and was born on 14 September 1989. He permanently relocated to Australia with his family on 20 April 1996 and has resided in Australia as the holder of a subclass 444 visa since that time. Relevantly, between 2007 and 2012, Mr Hunt committed a number of offences. On 4 September 2007, Mr Hunt committed his first offence, robbery. Mr Hunt was on a train line platform when he took a mobile phone from a vulnerable person. On 11 October 2007, Mr Hunt committed his second offence, assault occasioning bodily harm. The victim and his friend had left a fast food restaurant when they passed a group of teenagers, which included Mr Hunt. Mr Hunt went up to the victim and struck him twice, perceiving the victim to be spreading stories about him. Once the victim was on the ground, Mr Hunt struck him another six times. The attack was unprovoked. On 15 November 2007, Mr Hunt committed his third offence, contravene direction or requirement. Mr Hunt was required to report to the Redcliffe Police Station in relation to the assault, however he failed to do so. On 16 December 2007, Mr Hunt committed his fourth offence, public nuisance. Mr Hunt was being loud and abusive to police at around 2.30 am in the morning near a hotel. The police tried to speak with Mr Hunt, and Mr Hunt yelled out at them. On 24 January 2008, Mr Hunt committed his fifth and sixth offences, contravene direction or requirement and obstructing a police officer. Mr Hunt was at a shopping centre with a large group of people who were being loud, offensive and using coarse language. Mr Hunt was asked by police to leave the shopping centre and not return, however he was still there one hour later. The police approached Mr Hunt and attempted to arrest him for not complying, but Mr Hunt resisted and had to be forcibly placed in the back of a police vehicle. On 4 April 2008, Mr Hunt committed his eighth offence, manslaughter. A fight erupted at a park between two groups unknown to each other. One group comprised Mr Hunt and two other men, the other comprised the deceased, the deceased’s son, and their friend. Mr Hunt punched the deceased and kicked him whilst he was on the ground. With the help of another assailant, Mr Hunt threw the deceased into water. The deceased died as a result of the injuries sustained in the fight. Mr Hunt was held on remand from 4 April 2008 until 23 November 2010. On 14 March 2010, while being held in remand, Mr Hunt was charged with possessing dangerous drugs. He pleaded guilty to this offence and was sentenced on 15 July 2010 to one month’s imprisonment. On 23 November 2010, Mr Hunt was convicted of a number of offences, including that of manslaughter. He was sentenced to 8 years’ imprisonment for his conviction of manslaughter, and a further 12 months’ imprisonment, to be served concurrently, for his convictions of robbery and assault occasioning bodily harm.

Evidence

Evidence Before The Court

Illogical reasoning by a decision-maker on the way to a final conclusion may establish jurisdictional error: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 610; [2010] HCA 16 at [132] (Crennan and Bell JJ). Crennan and Bell JJ further explained the concepts of illogicality and irrationality in this context, as follows:129.It can be acknowledged that the contemporary invocation of "illogicality" or "irrationality" as a basis for judicial review may well have first emerged in Australia, as intimated by Gleeson CJ in S20, as a reaction to the ouster of the review ground of "Wednesbury unreasonableness" in immigration law. Equally it may be that the development of "irrationality" as a basis for judicial review in England grew out of dissatisfaction with the inherent circularity of the Wednesbury test and the implicit suggestion in Wednesbury that there were degrees or grades of unreasonableness. Be that as it may, accepting that an allegation of "illogicality" or "irrationality" must mean something other than emphatic disagreement as explained above by reference to Eshetu and S20, and also accepting that a demonstration of bona fides will not save an illogical or irrational decision or finding on a jurisdictional fact as stated in SGLB, how do "illogicality" and "irrationality" fit with the clearly related body of law concerned with error, particularly jurisdictional error, in respect of reasoning which is "clearly unjust", "arbitrary", "capricious" or "Wednesbury unreasonable"?130.In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.131.What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.(Footnotes omitted, emphasis added.)

Decision

Reasons for decision

Ground 3 is not substantiated.CONCLUSION Ground 1(b) of the amended originating application filed on 30 March 2021 is substantiated. It follows that the relief sought by the applicant is granted, including costs.

Ratio Decidendi

Legal Principle Established

In support of the relief sought, the applicant relied on the following three grounds:1. The Respondent’s decision dated 22 July 2020 is affected by jurisdictional error as the Respondent failed to engage in a genuine consideration of significant and clearly expressed matters raised by the Applicant in response to the Notice of Intention to Consider Cancellation issued to the Applicant under s 501(2) of the Act, namely:(a) the length of time the Applicant had been living in the Australian community since his last criminal offending; and (b) the permanent exclusion of the Applicant from Australia that would flow from a cancellation decision.Particulars A. In determining whether to exercise the cancellation power conferred by s 501(2) of the Migration Act 1958, the Respondent was obliged to consider representations made by the Applicant in response to the Notice of Intention to Consider Cancellation and to engage in an active intellectual process with each significant and clearly expressed representation.B. The Applicant, through his representative, made the following clearly expressed representations to the Respondent:(i) the length of time that had elapsed since the Applicant’s last criminal offending was a significant matter weighing against cancellation, particularly in the context of considering the Applicant’s risk of reoffending;(ii) the permanent exclusion of the Applicant from Australia that would result from cancellation was a significant matter weighing against cancellation.C. In considering whether to exercise the discretionary cancellation power conferred by s 501(2), the Respondent failed to give genuine consideration to either the length of time that had elapsed since the Applicant’s most recent criminal offending, or the permanency of the Applicant’s exclusion from Australia that would result from an exercise of the discretion.2. The Respondent’s decision dated 22 July 2020 is affected by jurisdictional error as the Respondent’s failure to give genuine consideration to the time that had elapse since the Applicant’s last criminal offending was unreasonable in the legal sense.Particulars A. In determining to exercise the discretion to cancel the Applicant’s visa under s 501(2), the Respondent relied heavily, if not exclusively, on the risk of harm the Applicant’s continued presence in Australia posed to the Australian community.B. In considering the risk of harm posed to the Australian community by the Applicant, the Respondent did not consider the seven and a half years that had elapsed since the Applicant’s last criminal offending.C. The Respondent was not prima facie obliged to consider the Applicant’s risk of reoffending when determining whether to exercise the discretion conferred by s 501. Indeed, the Respondent was not prima facie obliged to give consideration to any particular issue. However, in deciding to consider the Applicant’s risk of reoffending when determining whether to exercise the discretion, the Respondent was required to act reasonably.D. The Respondent’s failure to genuine [sic] consider, or have regard to, the period that had elapsed since the Applicant’s last criminal offending in the context of considering the Applicant’s risk of reoffending was unreasonable in the legal sense. In the circumstances of the Applicant’s case, no reasonable decision-maker could have conducted a genuine and reasonable assessment of the Applicant’s risk of reoffending without having regard to that length of time.3. The Respondent’s decision dated 22 July 2020 is affected by jurisdictional error as the Respondent’s finding that the Applicant “represents an unacceptable risk of harm to the Australian community” was illogical and irrational in the context of the antecedent findings made by the Respondent.Particulars (a) In considering the risk posed by the Applicant to the Australian community, the Respondent found that there was a risk the Applicant would reoffend, but did not make any finding quantifying that risk or comparing that risk to any other member of the Australian community.(b) In circumstances where the Respondent did not make any finding, nor sought to make any finding, quantifying the Applicant’s risk of reoffending, the Respondent’s ultimate finding that the risk of harm represented by the Applicant was unacceptable was illogical and irrational. CONSIDERATION