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.
Hunt v Minister for Home Affairs [2021] FCA 507 (14 May 2021)
Intro:-
Before the Court is an amended originating application for judicial review of a migration decision. The applicant, Mr Hunt, seeks review of a decision of the respondent, the Minister for Home Affairs (Minister), made on 22 July 2020 under s 501(2) of the Migration Act 1958 (Cth) (Migration Act), to cancel the applicant’s Class TY (subclass 444) visa.
Facts:-
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 including being convicted in the Supreme Court of Queensland on 23 November 2010 of manslaughter and sentenced to eight years imprisonment
On 29 November 2014, Mr Hunt married his long-time girlfriend, an Australian citizen. Since that time, he and his wife have had three children, all of whom are Australian citizens.
By written notice dated 22 June 2019, the Minister notified Mr Hunt of his intention to consider cancelling his visa under s 501(2) of the Migration Act (Notice). On 12 September 2019, Mr Hunt, through his then solicitor, provided a substantive response to the Notice. On 22 July 2020, the Minister decided to exercise his discretion under s 501(2) of the Migration Act to cancel the visa and provided a written statement of reasons for his decision. As a result, Mr Hunt was taken into immigration detention on 1 August 2020, where he remains.
The Minister found, in summary, that the Australian community could be exposed to great harm should Mr Hunt reoffend in a similar fashion, and that the Australian community should not tolerate any further risk of harm. The Minister considered that where great harm could be inflicted, even strong countervailing considerations would not preclude cancellation of a visa, and Mr Hunt represented an unacceptable risk of harm to the Australian community. The protection of the Australian community outweighed any countervailing considerations, so the Minister decided to exercise his discretion to cancel Mr Hunt’s visa.
Issues:-
The key issues raised by Mr Hunt was whether the Minister genuinely engaged with issues referable to:
a) The time that had elapsed between Mr Hunt’s last offence and the cancellation decision (ground 1(a), ground 2);
b) The permanency of Mr Hunt’s exclusion from Australia that would result from the cancellation decision (ground 1(b); and
c) the Minister’s finding that Mr Hunt represented an “unacceptable risk” was illogical and irrational in the context of the antecedent findings made by the Minister (ground 3).
Analysis:-
Grounds 1(a) and 2: genuine consideration of the time that had elapsed between Mr Hunt’s last offence and the cancellation decision
Grounds 1(a) and 2 can properly be considered together, as both grounds claim jurisdictional error by reason of the claimed failure of the Minister to engage in genuine consideration of matters raised by Mr Hunt referable to the length of time he has lived in the Australian community without offending. Ground 2 claims that the failure of the Minister to engage in genuine consideration of such matters was unreasonable.
The applicant further submitted that, given the centrality of Mr Hunt’s risk of reoffending to the Minister’s ultimate decision, the Minister was required to do more than simply note submissions concerning the risk of reoffending. Rather the Minister would have had to engage with the issue in an active intellectual process.
By reference to the Minister’s reasons, it was clear that the Minister was mindful of Mr Hunt’s criminal history, and was well aware of the most recent time that Mr Hunt had offended. The Minister also had extensive regard to Dr Yoxall’s psychological report and the letters supporting Mr Hunt which referred to the length of time which had elapsed since his last offending. It cannot be said that, in his consideration of the risk of Mr Hunt reoffending, the Minister failed to genuinely consider the elapse of time since Mr Hunt last offended.
Ground 1 (b): genuine consideration of the permanent exclusion of Mr Hunt from Australia that would flow from a cancellation decision
First, and in particular, while the Minister had regard to the elapse of time between the last offending by Mr Hunt and the date of the Notice in the context of assessment of the risk of Mr Hunt reoffending in Australia, the Minister has not had regard to the impact on Mr Hunt’s ties to Australia of the undisturbed passage of such a lengthy period as seven years following Mr Hunt’s last offending, during which time no Notice was served on him. The material before the Minister indicated that during those seven years Mr Hunt’s personal and family circumstances entirely changed, including that he had created a new family by marrying his Australian wife and fathering three Australian children.
The Minister acknowledged that seven years had passed since the last offending by Mr Hunt. However, it is not evident, in his reasons, the Minister considered the broader consequences of the elapse of this lengthy period of time, and the fact that a person in Mr Hunt’s position could, and did, over that time, and in possible reliance on the lack of any sign (or apparent triggering event) that he was at imminent risk of visa cancellation, continue to significantly strengthen his ties to Australia.
Second, while the Minister has acknowledged the distress and emotional hardship to Mr Hunt’s wife and children from the prospect of his removal from Australia, it is not clear that the Minister has given genuine consideration to the impact on Mr Hunt’s wife should his visa be cancelled.
The Minister formed the view that Mrs Hunt’s emotional, practical and financial needs could be addressed by ongoing dependence by her on her parents, namely by herself and her infant children residing with her parents, it is difficult to identify the basis on which the Minister can so conclude. The statement by the Minister assumes that Mrs Hunt’s parents are, and will continue to be, prepared and able to countenance ongoing residence by Mrs Hunt and her three small children with them, and be prepared and able to provide ongoing assistance of Mrs Hunt in relation to the children, potentially indefinitely
Third, to the extent that the Minister found that the fact of Mr Hunt’s previous employment in Australia “may assist in his resettlement in New Zealand”, it is unclear whether there was evidence before the Minister to support this finding, other than the fact that Mr Hunt had apparently been employed in Australia.
The reasons of the Minister are detailed, however the Court is satisfied that there has been an absence of genuine consideration of important aspects of Mr Hunt’s ties to Australia, and the consequent impact of permanent exclusion from Australia by his removal to New Zealand.
Ground 3: whether the Minister’s finding that Mr Hunt represented an “unacceptable risk” was illogical and irrational
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.
The Court accepts the submission of the Minister that, having regard to the broad nature of the Minister’s discretion and the fact that at least one of the purposes served by the power conferred upon the Minister under s 501(2) of the Migration Act is to protect the Australian public (Stretton at [75]), it was within the Minister’s authority to come to the view that Mr Hunt represented an unacceptable risk of harm in respect of any reoffending by him. As Wheelahan J recently observed in Gater v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 104 at [36]: ... The Minister was entitled to his view that the community should not tolerate any further risk of harm posed by the applicant, and that view did not require any further explanation. The Minister was not obliged to evaluate the risk of harm posed by the applicant in any particular way, or to ascribe any particular characterisation to the quality of the risk:
Decision:-
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).
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.
The Respondent pay the Applicant’s costs of this application, to be taxed if not otherwise agreed.
