Murphy v Minister for Home Affairs
[2018] FCA 1924
•4 December 2018
FEDERAL COURT OF AUSTRALIA
Murphy v Minister for Home Affairs [2018] FCA 1924
File number: VID 513 of 2018 Judge: MORTIMER J Date of judgment: 4 December 2018 Catchwords: MIGRATION – application for review of decision of Administrative Appeals Tribunal to refuse to overturn delegate’s decision not to revoke the mandatory cancellation of applicant’s visa under s 501 of the Migration Act 1958 (Cth) due to applicant’s criminal offending – whether Tribunal erred in drawing an inference concerning the risk to the Australian community posed by applicant – whether Tribunal’s conclusion on risk posed by applicant open on the evidence – findings made by Tribunal open on the evidence – application dismissed Legislation: Migration Act 1958 (Cth), ss 501(3A), 501(5), 501(6), 501(7), 501CA Cases cited: Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1
Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Date of hearing: 1 November 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 43 Counsel for the Applicant: Mr N Poynder Solicitor for the Applicant: Erskine Rodan & Associates Counsel for the First Respondent: Mr W Mosley Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting appearance save as to costs ORDERS
VID 513 of 2018 BETWEEN: JASON MURPHY
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MORTIMER J
DATE OF ORDER:
4 DECEMBER 2018
THE COURT ORDERS THAT:
1.The application for review is dismissed.
2.The applicant pay the first respondent’s costs of the application to be fixed in a lump sum.
3.If the parties agree on a lump sum figure in relation to the first respondent’s costs of the application, they are to file a joint minute of proposed orders on or before 4 pm on 18 December 2018.
4.In the absence of any joint minute of proposed orders, pursuant to paragraph 3 of these orders:
(a)on or before 4 pm on 7 January 2019, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS) dated 25 October 2016.
(b)on or before 4 pm on 14 January 2019, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).
5.In the absence of any agreement having been reached on or before 21 January 2019, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
REASONS FOR JUDGMENT
MORTIMER J:
INTRODUCTION AND SUMMARY
The applicant seeks review of a decision of the Administrative Appeals Tribunal, affirming a decision by a delegate of the first respondent, the Minister, to refuse to revoke the cancellation of the applicant’s Class BF Transitional (Permanent) visa. The outcome is that the applicant will be compelled to leave Australia, and is likely to have to go to the United Kingdom, where he has citizenship. The applicant, who was 33 years old at the time of the decision of the Tribunal, has lived in Australia since he was a young child, around 4 years old. The evidence was that his father had brought the applicant to Australia, after a marriage break up with the applicant’s mother, who remained in the UK. The applicant has had little contact with his mother and her family, and they remain in the UK. The applicant’s extended family in Australia revolves around his father and step-mother, his sister and the applicant’s young daughter, who the Tribunal accepted very much loves her father and whose interests the Tribunal accepted favoured Mr Murphy being able to remain in Australia.
There is no doubt a family will be broken up by reason of the cancellation of the applicant’s visa and the Tribunal’s decision not to revoke that cancellation. The policies and values which suggest that is the appropriate outcome given Mr Murphy’s circumstances, including his past offending, are not a matter for this Court. The only question for this Court is whether the Tribunal’s decision was made in accordance with the law.
For the reasons set out below, the application for judicial review will be dismissed.
BACKGROUND AND RELEVANT LEGISLATIVE PROVISIONS
Since 2014, cancellation of a visa held by a non-citizen who falls within the terms of s 501(3A) of the Migration Act 1958 (Cth) has been mandatory. In substance, s 501(3A)(a) and (b) provide what might be described as a “two strikes” process before that mandatory cancellation occurs. Relevantly to the applicant’s situation, the first “strike” (s 501(3A)(a)) is that a person has a “substantial criminal record” which is a concept defined in s 501(7):
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f) the person has:
(i)been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution.
The second “strike” (s 501(3A)(b)) is that, having such a record, a person is at the time the occasion for the exercise of the power in s 501(3A) arises, “serving a sentence of imprisonment on a full-time basis in a custodial institution”, for an offence against a law of the Commonwealth, a State or a Territory.
Cancellation is mandatory, and without the procedural fairness for which other parts of the Migration Act provide in relation to other cancellation decisions (s 501(5)).
Instead, the remedy for a person whose visa is cancelled in this way is to seek to have the cancellation revoked. Relevantly to the applicant’s circumstances, this is the process for which s 501CA provides. The revocation power is contained in s 501CA(4) and is expressed in the following terms:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
In most situations, the ameliorating effect of s 501CA(4)(b)(i) will not be available to a person, because – again, relevantly to Mr Murphy’s situation – there is no doubt that the person does not pass the character test in s 501(6) because the person does indeed have a “substantial criminal record”. This ameliorating effect might be available in the rare case where there has been some mistake or miscalculation about a person’s criminal record. Usually, people in the situation of the applicant have to rely on the second ameliorating aspect of this power: namely whether there is “another reason” why the cancellation decision should be revoked.
Again relevantly to the applicant’s circumstances and his judicial review application, in assessing whether there is “another reason” why the cancellation decision should be revoked, the Tribunal on review, like the delegate before it, is bound to take into account the guidelines promulgated by the Minister under s 499 of the Migration Act about the exercise of the revocation power. The version of these ministerial directions applicable to the Tribunal’s decision was what is called “Direction 65”. I have described various aspects of this direction in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, and its terms need not be set out in detail in these reasons, because they form only the background to the applicant’s ground of review.
The applicant’s visa cancellation and the Tribunal’s review decision
The visa cancellation occurred on 2 February 2017. It followed the applicant’s conviction and sentence on 18 November 2016 for, on the Tribunal’s calculation, sixteen offences, to which the applicant entered a guilty plea. He was sentenced to eight months’ imprisonment as an aggregate sentence for thirteen of the charges. This triggered what I have described above as the “second strike” aspect of s 501(3A), the applicant having at that time a substantial criminal record within the terms of s 501(7), having received a sentence of twelve months’ imprisonment in 2010, another of six months’ imprisonment, suspended, in 2011 plus a large number of other convictions, all of which are set out in two schedules attached to the Tribunal’s reasons and which the applicant accepted constituted an accurate record of his criminal history. On 2 January 2018, a delegate of the Minister refused to revoke the cancellation and the applicant applied to the Tribunal for review of that decision.
The Tribunal’s decision was handed down on 28 March 2018. It is a carefully considered and thorough decision. The Tribunal sets out the material factual background, the legislative provisions, and the terms and effect of Direction 65 (at [10]-[16]). Reflecting the terms of Direction 65, the Tribunal said:
10.Direction no. 65 has two sections, and three specific parts. Section 1 is a preliminary section. It contains a Preamble that
(i) details the objectives of the relevant MigAct58 provisions,
(ii)provides a statement of “general guidance” for decision makers exercising relevant MigAct58 powers, and
(iii)sets out “principles” described as providing “a framework within which decision-makers should approach” their particular statutory tasks.
11.The general guidance part of the Direction no. 65 Preamble declares commitment to protection of the Australian community from “harm as the result of criminal activity ... by non-citizens”. It describes the “principles” as being of “critical importance” in furthering that objective. It declares that the principles “reflect community values and standards” to be taken into account in “determining whether the risk of future harm from a non-citizen is unacceptable”: cl 6.2(1).
12. The principles stated in Direction no. 65
(a)characterise a non-citizens’ lawful presence in Australia as a “privilege” (a not entirely accurate description – see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [26])
(b) assert an expectation of law abiding respectful conduct by non-citizens
(c)contemplate a range of tolerance for “criminal or other serious conduct” by non-citizens, influenced by the nature of the conduct, the period of time the non-citizen has lived in Australia and the extent to which they have “been participating in, and contributing to, the Australian community”;
(d)recognise the relevance of the extent and nature of a non-citizen’s positive contribution to the Australian community; and
(e)recognise the relevance of any adverse impact of visa cancellation on a noncitizen’s Australian resident minor children and other family members.
13.An expressly stated principle of community expectation is that a visa should be cancelled if the holder has committed “serious crimes”. Other parts of the principles contemplate some permissible tolerance of criminal conduct. The degree of tolerance is stated to be “low” where the visa holder’s Australian community presence has been “only for a short period of time”. It is permissibly, but imprecisely, higher, where the person has lived in Australia since an early age, or for most of their life. The extent of the permissible tolerance range, and the calibration of any particular non-citizen’s conduct or risk within that range, will depend on impressions about whether the nature and extent of the past, and apprehended future, conduct is so serious that “any risk of future similar conduct in the future is unacceptable”: cl 6.3(4).
14.Section 2 of Direction no. 65 deals more specifically with the exercise of the relevant decision making power. It requires decision makers to act in a manner “informed by the principles”, take into account “the primary and other considerations relevant to the individual case”, and recognise that primary considerations “should generally” be given greater weight. Part C of Section 2 articulates the “primary” considerations, and some of the “other” considerations, to which regard must be had in response to revocation representations invited under MigAct58 s 501CA(3)(b).
15. The “primary” considerations in Part C are:
(a) the protection of the Australian community;
(b) the expectations of the Australian community, and
(c) the best interests of minor children in Australia.
16.The “other” considerations specifically discussed in Part C, to the extent they are relevant to Mr Murphy’s particular circumstances, are:
(a) the strength, nature and duration of his Australian ties;
(b) the impact of any revocation decision on victims of his conduct; and
(c)the nature and extent of any difficulties he is likely to encounter if removed from Australia as a result of the visa cancellation decision.
These passages reflect the approach eventually taken by the Tribunal to the disposition of the applicant’s review application.
The Tribunal summarised the legal effect of Direction 65, by referring to a passage in the reasons of Robertson J in Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 at [35] which his Honour attributed to the Minister’s submissions in that case:
…[Direction 65 does not] impose any limit on the matters that may be taken into account; properly construed, it does not stipulate the weight to be given to those matters in each and every case; and does not make relevant (in a mandatory sense) any consideration that is not already relevant by reason of the text and context of s 501 of the Migration Act.
In its reasons in Mr Murphy’s review, the Tribunal adopted this as its own view of the effect of Direction 65. Despite that, and in common with most if not all tribunal decisions this Court sees on judicial review, the approach taken by the Tribunal is to follow, in the structure and content of its reasoning, what is in Direction 65, and nothing else, and the weight and emphasis stipulated by Direction 65 is the weight and emphasis adopted by the Tribunal. In that sense, the legal and practical effects of Direction 65 diverge in tribunal decision-making in this area. In this proceeding however, as I have noted below, no aspect of the content or effect of Direction 65 formed part of the applicant’s judicial review grounds.
Relevantly to the applicant’s ground of judicial review, the Tribunal’s reasons include the following matters. Having set out in considerable detail aspects of the applicant’s offending, the Tribunal found (at various points, such as [20] and [21]) that there was a close association between the applicant’s illicit drug use and his offending. At [26], in the context of describing a psychological report tendered during the sentencing process for the applicant in 2010 (for offences that involved some violence, although on the agreed facts mostly committed by the applicant’s co-accused rather than him), the Tribunal found:
Dr Cunningham opined that, according to the psychometric tool he had used, Mr Murphy presented as a “moderate risk” of engaging in future violent behaviour. Dr Cunningham explained that the assessment tool had regard to three “domain” categories of risk:
(i) historical
(ii) clinical; and
(iii) management
In relation to clinical risk, Mr Murphy had active symptoms of mental illness, and displayed both lack of insight and impulsivity. In relation to management risk, Mr Murphy had a stressful and destabilising social environment and had been non-compliant with previous rehabilitation measures.
The Tribunal then referred to a second report by Dr Cunningham, in early 2011, completed after the applicant had engaged in further offending behaviour. Noting that Dr Cunningham had removed his opinion in his earlier report that the applicant “showed good insight” into his behaviour, and that Dr Cunningham had re-administered the risk assessment tool he had used earlier on the applicant, the Tribunal noted (at [31]) that Dr Cunningham reported that the second round of test results indicated a “‘moderate – high’ risk of future violent offending”. The Tribunal found that in relation to the March 2011 offences, on the limited material before the Tribunal, it was “reasonable to infer that Mr Murphy was in a distressed psychological state and that the offences themselves were at the lower end of the range of seriousness suggested by the nature of the charges”.
The Tribunal then found (at [34]) that of the approximately 42 offences committed by the applicant since September 2011, most were “typically dealt with either by way of fine, or a community service order”, and the Tribunal had little evidence about them. The Tribunal then turned to what it called the November 2016 offences, which were the “second strike” for the purpose of s 501(3A), as I have noted above.
The Tribunal went through in some detail the evidence about the circumstances of the applicant’s offending on these occasions, which spanned a period between September 2014 and September 2016 and consisted, on the Tribunal’s assessment, of charges for sixteen offences. In terms of its assessment of the applicant’s risk of re-offending, the Tribunal expressed this general finding (at [39]):
Two striking features of Mr Murphy’s offence history are his chronic substance abuse and the readily apparent failure of previous sanctions, encouragement and warnings, in achieving any significant rehabilitation. The latter failure being highlighted by Dr Cunningham’s May 2011 report – which deleted (from his earlier report) an observation that Mr Murphy had good insight, and provided a specific “borderline personality disorder” diagnosis. Its main symptoms were anger, impulsivity, severe mood swings and paranoia. Dr Cunningham observed that individuals with such an illness had an inability to adopt structured routines and place limits on their behaviour.
The Tribunal then described in detail the applicant’s attempts to secure assistance with treatment and rehabilitation, which the Tribunal accepted was genuine and ongoing. However at [44] the Tribunal stated:
Consistent with the reformative efforts and motivation evidenced in Mr Murphy’s medical records, he has expressed his remorse for his past behaviour, and his determination to make amends in the future. Since Mr Murphy faces a prospect of removal to England, one he has described as scaring him to death, his expressions of remorse and rehabilitative determination are unsurprising. That is not to say they are insincere, but their weight needs to be assessed, with regard to all relevant considerations, and especially the background of his offending since the September 2011 warning.
There is no challenge to this finding. However the Tribunal went on – in a careful and considered way – to give some real weight to Mr Murphy’s genuine attempts to avoid drugs (even in prison and immigration detention, where the applicant’s evidence was that they were freely available and he was pressured by other prisoners and detainees to use them). Ultimately, the Tribunal accepted (at [48]) that the risks of reoffending as described by Dr Cunningham needed to be tempered:
The Minister’s submissions also pointed to Dr Cunningham’s 2010 and 2011 reports as the only objective authoritative assessments of Mr Murphy’s risk of re-offending. However, the weight that can properly be attached to Dr Cunningham’s opinions some seven to eight years later requires careful regard to the integers of his opinion, and to subsequent events. In one respect of course, those subsequent events demonstrate Mr Murphy’s offences after September 2011 – and thus provide a hindsight corroboration of Dr Cunningham’s 2011 assessment. But in another respect subsequent events, and particular those relating to the period after September 2016, provide some reason to conclude that Mr Murphy’s contemporary risk of re-offending may be significantly less than it was in 2011.
At [49], the Tribunal referred to the applicant’s “determination to embark upon, and some measure of success in undertaking, a genuine attempt at rehabilitation”, and his addressing of some of his underlying psychiatric and psychological conditions. It continued at [50]-[51], in an important passage for the applicant’s ground of judicial review:
When all of these considerations are taken into account, I consider that Mr Murphy’s current risk of re-offending is principally associated with his drug addiction. That is essentially the same ultimate view that Dr Cunningham expressed in his 2010 report. There Dr Cunningham had identified Mr Murphy’s underlying personality disorder as another contributing risk factor, but he had opined that successful treatment of Mr Murphy’s drug addiction “should address his underlying personality dysfunction”. In those circumstances, the appropriate contemporary view is that Mr Murphy’s risk of re-offending is likely to be less than the “moderate” risk Dr Cunningham opined in September 2010. That view has regard to the integers that informed Dr Cunningham’s assessment at that time, the apparent genuineness of Mr Murphy’s rehabilitative motivation and measure of success to date, and the support offered by his father.
However, Mr Murphy’s past history, the chronicity of his drug addiction, and the chronicity of the anxiety and depression which have afflicted him, require a conclusion that he is psychologically and emotionally vulnerable. That vulnerability has in past manifested itself in offending – on many occasions. Some of his offences have involved violence, although at the low end of the scale. (He has never been dealt on the basis of having caused any significant injury). There is a not insignificant risk that he will offend again, as he has in the past. It is appropriate to conclude therefore that the first primary consideration, the protection of the Australian community weighs against revocation of the visa cancellation.
The Tribunal then considered the impact on victims of the applicant remaining in Australia, which is of no relevance to the ground of judicial review. The Tribunal then turned its attention to the “community expectations” aspect of Direction 65.
The point of referring to these findings by the Tribunal is that they put the finding challenged by the applicant in what I consider to be its proper context in the whole of the Tribunal’s reasoning process. It is not necessary for the purposes of the judicial review to traverse this aspect of the Tribunal’s reasons in any detail, save to note the Tribunal concluded (at [59]) that the applicant’s “many offences and convictions are not consistent with the basic community expectation of lawful compliance”, and this factor pointed in favour of non-revocation of the visa cancellation. The Tribunal next considered the best interests of the applicant’s child, the applicant’s ties to Australia and the likely hardship to be imposed on him if he were removed to the UK. Again, the Tribunal’s approach to these factors is not relevant to the ground of review and it is sufficient to note the Tribunal appeared to conclude (although it did not expressly say so, unlike with each factor which went against the applicant’s interests) that each of these factors tended to favour revocation of the visa cancellation.
It can be seen that to this point in its reasoning (that is, up to [67] of its reasons), the Tribunal has been engaged in making a series of findings, based on the evidence and material before it, on each of the matters relevant to the applicant’s review that Direction 65 indicates it should consider. Although there is a heading ‘Decision’ before the next paragraph ([68]), it is clear from the structure of the Tribunal’s reasons that it has already made, and explained, many findings critical to the outcome of the review before it reaches that part of its reasons that it has headed ‘Decision’. I make this point because the next four paragraphs, one of which contains the finding impugned by the applicant, should not be seen as representing all of the Tribunal’s findings on the review: far from it.
At [68], the Tribunal expressly finds that the best interests of the applicant’s daughter do not outweigh what it calls the “protective consideration and the concept of community expectation”. At [69], the Tribunal returns to the question of how to weigh the length of time the applicant has been in Australia, and his ties here, and the degree of “tolerance” which should be shown for his offending. While noting that in general terms the longer a person has been in Australia, the greater the tolerance that might be shown for her or his offending, the Tribunal concludes:
That judgment must be informed by the notion of what constitutes an “unacceptable risk” (see cl 13.1.2) – having regard to the “seriousness of potential harm” (cl 13.1.2(1)), the extent of the person’s offending (cl 13.1.1(1)(d)), and whether or not the person has continued to offend after being apprised of the risk of visa cancellation (cl 13.1.1(g)).
Contrary to the impression which might otherwise be formed, the Tribunal’s reference to clauses is not to any statutory framework, but to the numbering adopted in the ministerial direction.
Although it does not expressly say so, as I indicated during oral argument to counsel, I consider that what follows in [70] of the Tribunal’s reasons – which contains the passage impugned by the applicant on judicial review, flows from this last sentence in [69]. In other words, at [70], the Tribunal explains why it has decided that the risk posed by the applicant is unacceptable, having regard to the seriousness of his offending, as the Tribunal sees it.
Thus, at [70], the Tribunal finds (with the impugned finding underlined):
The details summarised in the Schedules to these reasons illustrate the extent of Mr Murphy’s offending. Schedule 2 reveals the fact of his approximately 57 offences after the September 2011 warning. The sheer number of those offences suggests the limit of any properly extended tolerance, and the presence of violence as elements of some of those offences, particularly those involved in the November 2016 convictions, tends to confirm that view. That confirmation is not materially reduced by recognition of the fact that the level of actual violence was “low”: see paragraph 36 above. This is partly because the absence of significant injury was perhaps fortuitous – given the impulsiveness, and typically drug related, of Mr Murphy’s behaviour. It is also partly because of the conceded feature of violence in Mr Murphy’s domestic relationships, (apparently illustrated by the 15 October 2015 – see paragraph 35(b) above).
THE PARTIES’ ARGUMENTS IN SUMMARY
I have had regard to the parties’ written and oral submissions, and summarise them here, referring below to particular submissions where necessary.
There is only one ground of review. It relates to the Tribunal’s characterisation of some of the applicant’s offending, in the second tranche of offending considered by the Tribunal.
In the originating application, the applicant describes the ground as:
The second respondent failed to carry out the task required of it by s 500(1)(ba) of the Act to review the decision of the first respondent by misconstruing the actual nature of the applicant’s conduct which led to the decision under review.
The particulars given in the originating application state that:
The second respondent erroneously ascribed a greater level of violence to the applicant’s conduct than was actually the case, by finding (at [70]) that “the absence of significant injury [to the victims] was perhaps fortuitous”.
In oral argument, counsel for the applicant submitted that the applicant had, as the Tribunal noted, conceded his past offending had involved a low level of violence. However, counsel submitted the Tribunal took that concession, and added to it or embellished it so as to make the finding, in the underlined passage extracted above. Counsel submitted it was very important to the likely outcome of the Tribunal’s review for the applicant to “hold onto” an assessment of his violence as “low level”, because of the prominence given in Direction 65 to the protection of the Australian community and the need to evaluate whether the risk posed by a person to the Australian community was an “unacceptable” one.
Against that background, counsel submitted the inferences drawn by the Tribunal in the underlined finding were not open, had no basis in the evidence before the Tribunal, and were nothing more than speculation, which by the placement of the finding in this particular paragraph suggested the finding was material to the Tribunal’s ultimate decision.
The Minister submits the finding was open to the Tribunal, emphasising that in the previous sentence the Tribunal recognised the applicant’s offending as a level of “fact”, was low, which was consistent with the evidence. The Minister submitted that as the applicant had himself stated that in every instance of offending he was drug or alcohol affected, and that he was involved in relationships with other drug users which all ended in apprehended violence orders and had involved a degree of violence, and evidence as to impulsivity, it was open to the Tribunal to reason that it was by chance that there was an absence of significant injury. The Minister relied on the observations of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 356 that an inference drawn through a process of illogical reasoning, where there was some basis for the inference, would not justify relief on judicial review.
I note here the applicant’s argument is not focused on illogicality of the Tribunal’s finding, so much as an argument that the Tribunal simply went too far beyond the material before it.
RESOLUTION
I accept that the impugned finding was material to the Tribunal’s reasoning, and material to the outcome of the review. It was not a single strand of reasoning which determined the review: as I have noted above, the Tribunal’s reasons are thorough and carefully considered, and there were many findings which can properly be described as “material” to the outcome of its review. Nevertheless, as a starting point, I accept the applicant’s submissions that this finding was one of them. That is because, as the Tribunal noted, it was a central aspect of its task to determine what kind of risk it considered the applicant posed to the Australian community in the future, if he were to be permitted to remain. A key part of assessing the nature and level of that risk was, as the Tribunal’s reasons show it correctly understood, the determination about the level of violence which was likely to be involved in any future offending in which the applicant might engage. That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.
I do not accept the impugned sentence involved the drawing of an inference which was not open to the Tribunal. Much of the task of the Tribunal involved speculation about the future, because it was required to assess what the applicant’s behaviour might be if he were permitted to remain in Australia, in order to decide whether he posed a risk to the Australian community in the future, what kind of risk that might be, and whether it was a risk that the Australian community should be expected to “tolerate”.
Rather, what the Tribunal was doing in [70] was, as I have explained above, expanding upon what it had said at [69] about how it was going about determining whether the risk it considered the applicant posed was an unacceptable one, noting in doing so it would examine the seriousness of the potential harm and whether or not the person had continued to offend after being warned of visa cancellation. At [70], what the Tribunal was doing was giving two reasons for its finding that the applicant had reached the limit of any tolerance that could be extended to him. Although it then recognised the “fact” that the violence in the applicant’s past offending was low (and the applicant did not challenge his finding, obviously), the Tribunal then gave two reasons why this “fact” did not alter the view it had reached. The first was the impugned reason, the second was the “conceded” feature of violence in the applicant’s domestic relationships.
I consider there was ample material on which the Tribunal could draw an inference that much of the applicant’s previous offending was impulsive – this came through in the psychological material, and as counsel accepted, the applicant himself admitted almost all of his offending was drug related. Both those characteristics could be rationally connected to a conclusion that there was an element of luck in Mr Murphy’s previous offending not having resulted in significant injury.
There was no embellishment by the Tribunal in making this finding: rather it was an inference open to it from the nature and circumstances of the applicant’s previous offending. Read fairly and in the context of the whole of the Tribunal’s reasoning process, it was not a matter of overwhelming significance in the Tribunal’s reasoning, such that there was some disproportionate reliance on it by the Tribunal which might have suggested an element of sheer speculation, or illogicality. As counsel for the applicant accepted, in earlier parts of its findings the Tribunal had found the applicant posed a “not insignificant risk” of future offending, including violent offending, albeit “at the lower end of the scale” (see [51]) and further had found an “undercurrent of violence and impulsiveness” as a sometime feature of his offending (at [68]). What the Tribunal said at [70] built on these earlier findings.
That is sufficient to conclude that the ground of review should not succeed and the applicant’s application for judicial review must be dismissed. The Minister sought to invoke the well-worn passages in the High Court’s reasons for judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272. There will be cases where the scrutiny for which a ground of judicial review calls can be said to be too close, relying only on looseness of language rather than demonstrable error in reasoning or legal understanding. However, on some occasions, close and careful scrutiny of the way a decision-maker expresses and explains her or his reasons for decision is necessary to understand the challenge to the decision, and will not be misplaced. The High Court’s passages in Wu Shan Liang are not a licence to pass over the language used by decision-makers, nor any kind of immunisation of the reasoning process of a decision-maker. Those passages remind reviewing courts to attend carefully to their function, and to observe the boundaries set by the Constitution, being the function and boundaries Brennan J explained in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-36. They do not require a court to refrain from looking closely at the language used by a decision-maker, but rather remind the Court to do so fairly and in context.
CONCLUSION
Capably argued as Mr Murphy’s judicial review argument was, it has not succeeded. As I noted at the start of these reasons, the Court’s orders, and what is likely to follow, will be hard for Mr Murphy, and for his family in Australia. If Mr Murphy is compelled to leave Australia, it is clear the Tribunal understood and accepted this outcome would be upsetting for, and perhaps damaging to, his young daughter. However, this Court’s role is limited to supervision of the lawfulness of the Tribunal’s decision, and the legal basis advanced for setting aside the Tribunal’s decision has not been made out. The application for review will be dismissed. There is no basis for anything other than the usual order as to costs.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer. Associate:
Dated: 4 December 2018
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