Okeke v Minister for Immigration (No.2)

[2016] FCCA 1965

FEDERAL CIRCUIT COURT OF AUSTRALIA

OKEKE v MINISTER FOR IMMIGRATION (No.2) [2016] FCCA 1965

Catchwords:
MIGRATION – Class TY subclass 444 Special Category Visa – whether the Minister had no evidence to make its finding – whether the Minister based its decision on a fact that did not exist – whether the Minister failed to carry out its statutory duty – no jurisdictional error identified – amended application dismissed.

Legislation:

Australian Citizenship Act 2007 (Cth) ss.25(1), 27

Migration Act 1958 (Cth), ss.501, 501CA.

Cases cited:
Tanielu v the Minster for Immigration and Border Protection (2014) 225 FCR 424

Applicant: RONNY OKEKE

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 1361 of 2016

Judgment of: Judge Street

Hearing date: 1 August 2016

Date of Last Submission: 1 August 2016

Delivered at: Sydney

Delivered on: 1 August 2016

REPRESENTATION

Counsel for the Applicant: Mr G Johnson

Solicitors for the Applicant: Turner Coulson Immigration Lawyers

Counsel for the Respondent: Mr D Hughes

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The amended application is dismissed.

2. The Applicant pay the costs of the Respondent fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1361 of 2016

RONNY OKEKE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of New Zealand. The applicant arrived in Australia on 3 February 2000 as a holder of a subclass 444 Special Category temporary visa. On 21 August 2007, the applicant applied for Australian citizenship, and his application was approved on 5 November 2007. The applicant did not immediately become a citizen upon receiving that approval. It was necessary for the applicant to make a pledge in accordance with s.27 of the Australian Citizenship Act 2007 (Cth).

2. In November 2007, the Department of Immigration and Border Protection became aware that the applicant was of interest to an ongoing police investigation. In August 2007, the Department became aware that the applicant had been charged with offences. Because of these matters, the applicant was unable to take the pledge required to become a citizen under s.27 of the Australian Citizenship Act 2007.

3. On 4 February 2010, the applicant was sentenced after entering pleas of guilty to the following five offences: 

   1-3. Three offences of attempt to possess a marketable quantity of a border controlled drug contrary to s 11.1 and s 307.6 of the Commonwealth Criminal Code 1995. The offences relate to quantities of both heroin and cocaine. The maximum penalty for the offence is twenty five years' imprisonment and/or a fine of $550,000;

   4. One offence of possess of a marketable quantity of a border controlled drug, namely heroin, reasonably suspected of being imported contrary to s 307.9 of the Commonwealth Criminal Code 1995. The maximum penalty for this offence is twenty five years' imprisonment and/or a fine of $550,000.

   5. One offence of recklessly deal with money which is the proceeds of crime namely $60,150 contrary to s 400.5(2) of the Commonwealth Criminal Code 1995. The maximum penalty for this offence is seven years' imprisonment and/or a fine of $36,200.

4. In relation to the first offence of one package, the District Court of New South Wales sentenced the applicant to eighteen month’s imprisonment.  In relation to the second offence involving three packages, the District Court of New South Wales sentenced the applicant to three years’ imprisonment.  In relation to the third offence involving two packages, the District Court sentenced the applicant to three years’ imprisonment.

5. In relation to the offence of possess heroin, the District Court sentenced the applicant to four years’ imprisonment. 

6. In relation to the fifth offence involving money the proceeds of crime, the Court sentenced the applicant to 14 months’ imprisonment.  This gave rise to a head sentence of 10 years and six months, with a non‑parole period of eight years.

7. The Court of Criminal Appeal on 1 December 2010 allowed an appeal and, in respective of the five counts, imposed the following sentence:

   Count 1: · a term of imprisonment of 2 years that commenced on 1 August 2009 and expires on 31 July 2011;

   Count 2: a term of imprisonment of 7 years that commenced on 1 August 2010 and expires on 31 July 2017;

   Count 3: a term of imprisonment of 4 years 6 months that commences on 1 August 2010 and expires on 28 February 2015;

   Count 4: a term of imprisonment of 6 years 6 months that commences on 1August 2012 and expires on 31 January 2019;

   Count 5: a term of imprisonment of 18 months that commenced on 1 August 2008 and expired on 28 February 2010;

8. The approval of the applicant's application for citizenship was cancelled on 16 January 2012, pursuant to s.25(1) of the Citizenship Act. On 20 May 2015, a delegate of the Minister decided to cancel the applicant's visa pursuant to s.501(3A) of the Migration Act 1958 (Cth). That provision did not confer a discretion to cancel and had a mandatory obligation to cancel if the two prescribed conditions were satisfied.

9. In the present case, both conditions were satisfied, as the applicant had a substantial criminal record because he had been sentenced to a term of imprisonment of 12 months or more and, therefore, did not satisfy the character test in accordance with s.501(6)(a) and (7). Secondly, the applicant was serving a full‑time sentence of imprisonment in a custodial institution because he had committed an offence against Australian law.

10. The applicant was invited to make representations to the Minister about revoking the decision to cancel the visa.  The applicant's migration agent responded on 11 June 2015, as well as providing more detailed representations on 10 July 2015 and supporting documentation. On 28 August 2015, the applicant provided further material.  On 25 January 2016, an officer of the Department provided the applicant's representative with a copy of the material that had been received, and provided an opportunity for response. 

11. A response was received on 8 February 2016, and further documents were provided by the applicant on 9 February 2016, 18 February 2016, 26 February 2016, and 29 February 2016.

12. The power which the Minister was considering is conferred by s.501CA(4) of the Act which provides as follows:

    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.

13. In the Minister's decision, the Minister accepted that representations had been made in accordance with s.501CA(4)(a) and was not satisfied the applicant passed the character test. The applicant also accepted that he did not satisfy the character test. The real issue for the Minister was whether the Minister was satisfied that there was "any other reason why the original decision should be revoked".

14. The Minister's reasons identify in para.7 having considered the representations made on behalf of the applicant and the documents that the applicant had provided in support of his representations. In undertaking the statutory task required, the Minister identified that he had assessed all of the information set out in the attachments.  The Minister identified in particular that he had considered the representations and documents that the applicant had submitted in support of his representations regarding why the original decision should be revoked.

15. The Minister summarised what had been submitted as to why the original decision should be revoked, referring to the best interests of the applicant's 15 year old daughter,  the familial employment and social ties the applicant had formed within Australia,  the impediments to return to New Zealand due to his age and physical and mental health conditions,  the rehabilitation the applicant had achieved,  the employment prospects upon release,  as well as the applicant's resolution to refrain from offending and to become a contributing member to Australia.

16. Under a subheading, the Minister then considered the best interests of minor children, and accepted that the best interests of the child was if the cancellation was revoked.  The Minister, under a heading “Expectations of the Australian Community”, identified the criminal conduct reflecting a breach of the trust of the Australia community, and that the Australian community would expect non‑citizens to obey Australian laws.

17. The Minister referred to the serious nature of the offences and concluded that the Australian community would expect the applicant should not hold a visa.  The Minister noted that there was no issue of non‑refoulement obligations in relation to the applicant.  The Minister turned to subheading topic of “Strength, Nature and Duration of Ties”, and accepted that the applicant had formed considerable social links to the community.  The Minister identified having considered the effect of non‑revocation upon the applicant's immediate family and his social circle in Australia, and accepted that his wife and his friends would experience emotional hardship if the visa cancellation was not revoked.

18. The Minister then turned to a subheading, “Extent of Impediments If Removed”, and found that the applicant would not face language or cultural barriers on his return to New Zealand, and would have access to medical and social welfare support systems which are similar to Australia.  The Minister accepted that the applicant may be unfamiliar with the health and social welfare and other support networks available to him in New Zealand, and accepted that he may experience emotional and practical difficulties upon his return to New Zealand. The Minister found that the applicant would have employment or business prospects in New Zealand.

19. The Minister addressed the subheading of “Protecting the Australian Community”, and referred to giving consideration to the protection of the Australian community and, in particular, taking into account the applicant's claims that he would not reoffend and that he has rehabilitated.

20. The Minister referred to the government's commitment to protecting the Australian community from harm as a result of criminal activities by non‑citizens.  The Minister also took into account that remaining in Australia is a privilege that Australia confers on non‑citizens in the expectation that they are law abiding.  The Minister addressed the sub-heading of “Criminal Conduct”, and concluded that the applicant's criminal conduct was serious.

21. The Minister then addressed a sub-heading “Risk to the Australian Community”. The Minister expressly referred to the fact that the offences were committed for financial gain. The Minister referred to the medical evidence identifying that the applicant had a health condition and a crack cocaine addiction which contributed to his offences. The Minister found that he concurred with the Court's view that the offending demonstrated a disregard of the law.

22. The Minister expressly referred to a probation and parole report dated 29 June 2009 which indicated that the applicant was not at that time remorseful, minimised his involvement in his offending, and was dishonest about his personal circumstances at the time of the report.  The Minister also identified taking into account two psychologist's reports which the Minister noted were of the view that the applicant is remorseful and has a "very low risk" of reoffending.  The Minister's decision records the "very low risk" in his reasons.

23. The Minister refers to having taken into account the applicant's behaviour whilst in custody, and his attending counselling and rehabilitation courses, and undertaking further studies at TAFE.  The reference to undertaking further studies at TAFE was a topic touched on in submissions advanced on behalf of the applicant, relevantly under cover of a letter dated 10 July 2015. 

24. Those submissions had a heading “Rehabilitation” and “Prison and Detention Conduct”, which provided as follows:

    Rehabilitation

    For the last six years, with a wife he married in 2007 now working in Brisbane, and a young teenage daughter having to live in Canada with his sister the threat that he may not able to be with them in Australia because of his past criminal conduct has been an increasing burden on him and left him with a great sense of guilt and shame. He understands the extent and consequence of his anti-social behaviour brought on by his moral turpitude in turning to drugs, and then dealing in drugs for personal gain has been at a very high price. Something, upon reflection he would never have done or do if he had more insight and understanding at the time. He has written

    “... I have never been in trouble with the law before in any country ...I was just desperate for money and desperate for drugs and I wasn't thinking at the time about consequences of my actions for me and or victims or my family ....”

    The applicant has a heart condition, and was fitted, after a heart attack with pacemaker in 2013 and is grateful to be alive and is thankful to the Australian community. He has to monitor his health consistently and avoid stress; he is susceptible to high blood pressure fluctuations. He states he wil never engage again in acts and conduct that could, and are contrary to the laws. He has written,

    “This is my first and last offence. I have gone through a lot, since I came gaol which changed me forever .... if permitted to stay I will not repeat the mistakes of my past ... I have been properly medicated for my depression and heart condition. I did use drugs and alcohol to deal with my problems ... but I know that I don't have to do this anymore."

    He states that his offending occurred almost seven years after arriving in Australia and was occasioned when he lost his long term job as a plasterboard installer. He could not locate a job at the time, was running out of money to pay the mortgage was turning to drugs to get over his down moods and swings. Was attracted by the lure of easy money by the drug dealer and became involved in distribution of illicit drugs. He needed the money to pay both his own drug dealer and other family expenses such as the mortgage for an apartment he bought with his second wife Velma.

    Whilst he has developed an interest in the building and Real Estate industry and if allowed to stay in Australia with his wife and daughter he would pursue part time studies in this area at TAFE initially, and possibly later, seek higher qualifications such as degree in business studies. Directly, working in a physically demanding job in the building industry is not practical given his heart condition. See Annexures, I and J

    He has the support of his immediate family including his wife who has stood by him over the last eleven years despite her own down periods and need for her to work full-time.

    Mr Okeke has stated that;

    “Its finally registered .. that its time for me to pay back Velma and my kid, and step up and be a real man and a real dad again .... a want a chance to live a happy, honest and normal life with my wife and my kid and with rest of my family ..... (Australia).

    The applicant under NSW Corrective Services has been granted education leave to attend successive TAFE courses. Has been granted medical and day/weekend leave as part of the transition process to being paroled in the community. He adhered to, and complied at all times to the Corrective Services schedule and timetables when on leave. See Annexure M.

    Education has always been important to the applicant and the chance to learn at TAFE was taken up with alacrity once he was qualified to go on day leave: he recently completed a Diploma in Property Management which can open up new vistas for him. See Annexure J2

    Prison and Detention Conduct

    He has adhered to and complied with all rules and directions given as well as the Court Orders both in gaol (NSW Corrective Services, Metropolitan Remand and Reception Centre - Silverwater) and at various jail sites including Long Bay as well as at after release the Villawood Immigration Detention Centre. As part of his rehabilitation he has been attending regularly, counselling and at the gaol received support from the NSW Department of Health as well as working inn the prison kitchen and in the textile sewing section factory for wages, refer Annexure M.

25. The submissions also included a reference to the extent of impediments if removed in respect of the applicant's age and health, with a reference to "See Annexure L".  Annexure L included a reference from a professor referred to in the submissions. Annexure L also included a document from a correctional centre identifying a travel route in relation to the applicant attending a particular TAFE.  The travel route identified that the applicant was at all times to remain in the company of an approved sponsor at an approved location at all times.  The journey was identified by a particular route and time limits for studying between 9.30 am and 2.30 pm, Wednesdays to Fridays.

26. A further travel route document identified the inmate to remain in the company of approved sponsors at approved locations at all times, in relation to Mondays, Tuesdays, Thursdays and Fridays, again between 9.30 am and 2.30 pm, and again identified a particular route and time limits for the applicant.  Also included within Annexure L was a first day leave Corrective Services NSW document identifying departure by the applicant on a Saturday between the hours of 8 am and 6 pm, identifying the name of a sponsor and the collecting address, noting an undertaking which included that the applicant remain in the company of the sponsor at all times, and as part of the undertaking that the applicant would remain at the sponsor's address for the entire period, and an undertaking that the applicant would travel directly from the sponsor's residence to the correctional centre.

27. There is a further document relating to a medical provider attendance at a particular hospital on a particular day between the hours of 8:25 A.M. and 1:30 P.M. This approval to attend the Westmead Hospital was one which records that no correctional officer would take charge of the inmate during the escort. The document notes that upon being discharged from the hospital, the inmate must be immediately returned. There are then two further Corrective Services NSW documents identifying day leave between 8 am and 6 pm with the same sponsor at the same address, with the same undertakings as identified above.

28. The Minister also noted in his reasons that the applicant had worked and been involved in religious activities and studies in prisons. The Minister accepted that the applicant is generally compliant in criminal custody. The Minister accepted that after more than six years in prison, the applicant now expresses genuine remorse and is now drug and alcohol-free. The Minister acknowledged the applicant's future plans and his statement that he has rehabilitated and will not offend.

29. The Minister also acknowledged that upon release, the applicant has offers for ongoing full‑time jobs.  The Minister also recognised that community support would be available to the applicant reflected in the support letters of various family friends and pastors.  The Minister said that notwithstanding being mindful that the applicant's rehabilitation has not been tested in the community, the Minister found that the applicant continues to present an ongoing albeit low risk of reoffending.  The Minister made reference to being cognisant that great harm could be inflicted on the Australian community, should the applicant reoffend. 

30. The Minister then had a subheading “Conclusion”, referring to having considered all relevant matters, including an assessment of whether the person had made representations in accordance with the invitation, and an assessment of whether the Minister is satisfied that the person passes the character test. There was also an assessment of whether the Minister was satisfied that there is another reason why the original decision should be revoked for the purposes of s.501CA(4)(b)(ii), having considered all available evidence to the Minister, including the evidence provided by and on behalf of the applicant.

1. The Minister concluded that the applicant had made representations in accordance with the invitation, and was not satisfied that the applicant passed the character test as defined by s.501. In considering whether there is another reason why the original cancellation decision should be revoked, the Minister made reference to giving primary consideration to the best interests of the daughter, and that the Minister had found that her best interests would be best served by revocation of the visa cancellation.

2. The Minister also made reference to having considered the length of time the applicant has made a positive contribution to the Australian community for seven years, and the consequences of the decision for his wife in Australia. The Minister also expressly referred to having considered the rehabilitation process that the applicant had achieved, and the impediments for the applicant upon his removal due to his health conditions and personal circumstances.

3. The Minister made reference to, on the other hand, considering whether he was satisfied that there is another reason why the decision should be revoked, and that he had given significant weight to the serious nature of the crimes committed by the applicant.  The Minister also said that he was mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia. The Minister made a reference to a further finding that the Australian community could be exposed to a great harm should the applicant reoffend in a similar fashion.  The Minister said that he could not rule out the possibility of further offending by the applicant.

4. The Minister then said, in reaching his decision about whether he was satisfied that there is another reason why the original decision should be revoked, that the applicant represents an unacceptable risk of harm to the Australian community, and that the protection of the Australian community outweighs the best interests of his daughter as a primary consideration, and any other considerations described above in the reasons of the Minister.

5. The Minister expressly referred to this including the 16 years of residence in Australia, his employment, social and familial links to Australia, the rehabilitation process the applicant had made, the hardship on the applicant, and his family and social networks that would endure in the event the decision is not revoked. The Minister then concluded, having given full consideration to all of these matters referred to above, that he was not satisfied that for the purposes of s.501CA(4)(b)(ii) that there is another reason why the original decision to cancel the applicant's visa should be revoked.

6. The reasons conclude:

   Accordingly, the Minister has decided not to revoke the original decision to cancel the applicant's class TY subclass 444 Special Category temporary visa. 

   The reasons are signed by the Minister and dated.

7. The grounds of the application are as follows: 

   1. The Respondent based his decision on a fact that did not exist

   Particulars

   a. The Respondent found at [51]

   “Notwithstanding, I am mindful that Mr. Okeke's rehabilitation has not been tested in the community."

   b. The Applicant had been granted weekend leave during his gaol sentence. His rehabilitation had, therefore, been tested, to some degree, in the community

   2. The Respondent had no evidence to support a finding

   Particulars

   a. The Respondent found at [51]

   “Notwithstanding, I am mindful that Mr. Okeke's rehabilitation has not been tested in the community."

   b. There was no evidence to support this finding

   3. The Respondent failed to carry out his statutory duty.

   Particulars

   a. The Migration Act 1958 s.501CA provides

   “(4) he may revoke the original decision if. ... "

   The Respondent, therefore, has a discretion to revoke or not to revoke, a decision cancelling a visa.

   b. The Respondent gave primacy to the protection of the Australian community and found at [58]

   “Further, I find that the Australian community would be exposed to great harm should Mr. Okeke re-offend in a similar fashion. I could not rule out the possibility of further offending by Mr. Okeke.

   c. Mr Okeke's chance of re-offending had been assessed as

   
   

   “very low risk"

   d. By limiting the test to cases only where the Respondent could rule out the possibility of further offending, the Respondent has effectively set a hurdle that nobody could overcome. He, therefore, failed to exercise his discretion under s.501 CA of the Act.

8. Counsel on behalf of the applicant did not press ground 4.  In relation to ground 1, reference was made by counsel to the documents in relation to the TAFE leave that the applicant undertook as well as the day leave identified in annexure L, as well as taking the Court to a day leave document at annexure M, identifying again Saturday day leave between 8 am to 6 pm with the same sponsor and same address, and the same undertakings referred to above.

9. It was the first sentence of para.51 specifically that the applicant relied upon in relation to the alleged error in ground 1.  Paragraph 51 provides as follows:

   51. Notwithstanding, I am mindful that Mr OKEKE's rehabilitation has not been tested in the community. I find that Mr OKEKE continues to present an ongoing, albeit low, risk of reoffending. I am cognisant that great harm could be inflicted on the Australian community should Mr OKEKE reoffend.

10. The substance of the submission was that the leave to attend TAFE and the day leave and medical leave referred to meant that the applicant's rehabilitation had been tested, and it was argued that there was no evidence to support the finding made by the Minister in the first sentence in para.51.  The constrained and limited circumstances of the leave identified in the documents to which reference has been made supports the finding made in the first sentence of para.51.

11. The finding made by the Minister was open and cannot be said to lack an evident and intelligible justification.  Attending a hospital or going straight to a place of education and return, or being in the company of someone and going to their residence and directly returning to the correctional facilities is not a testing of the applicant in relation to his rehabilitation in the community.  Ground 1 fails to make out any jurisdictional error.

12. In relation to ground 2, for the reasons I have already given, there was evidence to support the finding of the Minister that the rehabilitation of the applicant had not been tested in the community.  The applicant had not been given parole, and the limited leave and educational attendance was something to which the Minister was clearly alive in light of the reference to the fact that the applicant had undertaken studies at TAFE.  The adverse finding in para.51 was open.

13. Counsel on behalf of the applicant sought to develop an argument that the Court should infer that no regard had been had by the Minister to the documents that formed part of Annexure L and Annexure M.  Apart from the express reference by the Minister to having taken into account the applicant's submissions and documents, it is apparent from the Minister's reasons that the Minister took into account the submissions and documents that were advanced on behalf of the applicant by responding to them, in particular in relation to his alleged rehabilitation.

14. It was not advanced on behalf of the applicant that his rehabilitation had been tested in the community.  The limitations placed on the applicant in relation to the limited leave that he had had supports the finding that was made by the Minister.  Ground 2 fails to make out any jurisdictional error.  I accept the first respondent's submission that even if there had been said to be any error in relation to the Minister's fact-finding in relation to the applicant's exposure to the community, that would be an error of fact within the jurisdiction of the Minister, and would not give rise to any jurisdictional error.

15. In relation to ground 3, counsel for the applicant focused the argument upon the second and third last paragraphs of the Tribunal's reasons, paras.58 and 59 as follows: 

    58. Further I find that the Australian community could be exposed to great harm should Mr OKEKE reoffend ln a similar fashion. I could not rule out the possibility of further offending by Mr OKEKE.

    59. 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 OKEKE represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his daughter, as a primary consideration, and any other considerations as described above. These include his 16 years residence in Australia, his employment, social and familial links to Australia, the rehabilitation progress he has made and the hardship Mr OKEKE, his family and social networks will endure in event the original decision is not revoked.

16. Counsel contended that to impose a standard of no possibility of further reoffending would be to apply a test outside s.501CA, and that on a reading of the Minister's reasons, including what was said in para.59, the Minister had, in effect, created an impassable hurdle for the applicant. I reject the submission that the Minister applied a test in relation to the absence of possibility of further offending. The finding by the Minister that the Minister could not rule out the possibility of further offending by the applicant was a finding of fact open on the material before the Tribunal, and cannot be said to lack an evident and intelligible justification.

17. The Minister was not, by reference to the possibility of the applicant reoffending, introducing a test for the applicant to meet in relation to s.501CA. Rather, the Minister was identifying the matters to which the Minister had given consideration in the weighing exercise that the Minister engaged in, consistent with the statutory obligation in respect of that discretionary power under s.501CA.

18. Counsel for the first respondent contended that there was no identification by the Minister of an evaluation of the risk of harm, and that the case reflected the same kind of error as was found by Mortimer J in Tanielu v the Minster for Immigration and Border Protection (2014) 225 FCR 424. In that case, the Court found that there were no express findings at all about the likelihood of the person in that case reoffending, and the learned Judge considered that the reasoning of the Tribunal did not reflect the Minister engaging in any assessment of the risk of future harm.

19. It was in those circumstances in that case that the Court found that there was jurisdictional error because there had been no genuine consideration on the merits about the likelihood of the applicant in that case reoffending.  The Court was taken to the particular facts as identified in paras.32 and 35.

20. In the present case, it cannot be said that there were no express findings about the likelihood of the applicant reoffending.  The Minister, under the heading “Risk to the Australian Community”, clearly took into account the reports identifying that the applicant was remorseful and supporting a very low risk of reoffending.  The Minister made a finding in that regard that the risk of reoffending by the applicant was low.  That was a finding by the Minister which was an assessment of the risk of future harm.  I find that the decision in Tanielu supra is distinguishable from the facts of the present case. 

21. I find that the Minister properly addressed the factor of risk, and properly took into account the applicant's circumstances in considering whether there was any other reason why the original decision should be revoked.

22. I find that the Minister engaged in a genuine consideration of the merits as required by s.501CA of the Act. I reject the submission that the respondent failed to carry out its statutory duty under s.501CA of the Act.

23. I reject the submission that the Minister applied a speculative test in relation to future assessment of risk.  Counsel for the applicant acknowledged that the risk of harm to the Australian community was a relevant factor for the Minister to take into account, and acknowledged that the protection of the Australian community was a relevant matter for the Minister to take into account.

24. I reject the submission that the reference by the Minister to unacceptable risk of harm to the Australian community was an unassessed risk. The Minister's reasons are to be read as a whole and without a keen eye for error. The Minister took into account and made a finding about the risk of the applicant reoffending. The Minister found that that risk was low. The Minister also identified the nature of the risk in that regard, having identified the offences as serious.

25. This is not a case where the Minister has created an impassable hurdle in relation to the applicant in respect of the risk of harm to the Australian community. The Minister has properly engaged in a weighing exercise consistent with the statutory obligations. No jurisdictional error of the kind alleged in ground 3 is made out. 

26. The amended application is dismissed.

I certify that the preceding fity-six (56) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 9 August 2016