FEDERAL COURT OF AUSTRALIA Tuala v Minister for Home Affairs [2019] FCA 345 File number: NSD 1149 of 2018 Judge: FLICK J Date of judgment: 15 March 2019 Catchwords: PRACTICE AND PROCEDURE – application for an extension of time – lack of merit in proposed grounds of review – extension of time refused MIGRATION – whether weight given to risk of re-offending prevails over best interests of the children ADMINISTRATIVE LAW – need for path of reasoning to be transparent – reasoning exposes weight given to competing interests – decision not unreasonable Legislation: Migration Act 1958 (Cth) ss 477A, 501, 501CA Cases cited: BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78, (2017) 252 FCR 82 Folau v Minister for Immigration and Border Protection [2017] FCAFC 214, (2017) 256 FCR 455 Khan v Minister for Immigration & Ethnic Affairs [1987] FCA 713 Maere v Minister for Home Affairs [2018] FCA 1694 Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, (2009) 83 ALJR 1123 Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274, (2001) 106 FCR 426 Moana v Minister for Immigration and Border Protection [2015] FCAFC 54, (2015) 230 FCR 367 NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, (2014) 220 FCR 1 Swift v SAS Trustee Corporation [2010] NSWCA 182, (2010) 6 ASTLR 339 Tewao v Minister for Immigration and Citizenship [2012] FCAFC 39, (2012) 126 ALD 185 Date of hearing: 18 December 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 29 Counsel for the Applicant: Mr L D Robison Solicitor for the Applicant: Gardner Ekes Lawyers Counsel for the Respondent: Mr G Johnson Solicitor for the Respondent: Mills Oakley ORDERS NSD 1149 of 2018 BETWEEN: ALVIN TUALA Applicant AND: MINISTER FOR HOME AFFAIRS Respondent JUDGE: FLICK J DATE OF ORDER: 15 MARCH 2019 THE COURT ORDERS THAT: 1. The Application for an Extension of Time filed on 24 October 2018 is refused. 2. The proceeding is dismissed. 3. The Applicant is to pay the costs of the Respondent, either as assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT FLICK J: 1 The Applicant in the present proceeding, Mr Alvin Tuala, is a citizen of New Zealand who arrived in Australia in July 2000 at the age of 23 years. He was granted a Special Category (class TY) (subclass 444) visa. 2 In November 2013 he was convicted by Judge Robison in the New South Wales District Court on three counts of discharging a firearm with intent to cause grievous bodily harm. He was sentenced to a term of eight years imprisonment. 3 In January 2016 his visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth). A delegate of the Minister was of the view that Mr Tuala did not pass the "character test" prescribed by s 501(6)(a) as he had a "substantial criminal record" for the purposes of s 501(7)(c). Mr Tuala made representations to the Minister seeking revocation of the cancellation decision. The Minister on 1 May 2018 concluded that the revocation decision should stand. 4 On 8 June 2018 there was filed in this Court an Originating Application seeking review of the Minister's decision. On 12 July 2018 the Minister filed a Notice of Objection to Competency on the basis that the Originating Application was not filed within the 35 days prescribed by s 477A(1) of the Migration Act. An Application for an Extension of Time was filed on behalf of Mr Tuala on 24 October 2018. An Amended Originating Application was filed on 18 December 2018. 5 The Applicant appeared before the Court represented by Counsel, as did the Respondent Minister. 6 The Objection to Competency is to be upheld and the proceeding is to be dismissed. The Objection to Competency 7 The Application for an Extension of Time is supported by an affidavit sworn by Mr Tuala's solicitor. The affidavit accepts that the Originating Application was not filed within the 35 day time limit prescribed by s 477A and that it was filed three days out of time. 8 The affidavit continues on to state (without alteration): 9. I am instructed and verily informed by the Applicant that he had logistical and communication difficulties in preparing his Application whilst in immigration detention. 10. I am instructed and verily informed by the Applicant that exerted his best efforts to file his Application on time. That which is missing from the explanation provided for the delay is any specification of the "logistical and communication difficulties" to which reference is made. But that omission may presently be left to one side. 9 That which dooms the Application for an extension of time to failure is the absence of any merit in the Grounds of Review proposed to be relied upon. Had any one or other of those Grounds exposed any error, an extension of time would have been granted. Mr Tuala clearly intended to seek review of the Minister's decision, the extent of the delay was short and the Minister did not claim any prejudice. The proposed Grounds were thus considered as if an extension had been granted. Mr Tuala can thus be assured that the proceeding is to be dismissed not because of any failure on his part to act more promptly but upon the basis that his arguments lacked legal merit. 10 In the absence of any of the Grounds having any legal merit, it is – with respect – pointless to extend time only to thereafter dismiss the Originating Application (or any Amended Originating Application). The proposed Grounds of Review 11 The Originating Application sets forth four Grounds of Review. However only three Grounds of Review are relied upon in the Amended Originating Application. The Ground (in the Originating Application) alleging a denial of procedural fairness of the part of the Minister has been abandoned, as has the Ground alleging jurisdictional error on the basis the Respondent declined to revoke the cancellation of the Applicant's visa despite having found there were sufficient reasons to do so. The Amended Originating Application instead raised a new second Ground of Review, namely that the Minister failed to give the application "proper, genuine and realistic consideration". 12 The first of the Grounds now relied upon, namely a failure on the part of the Minister to take into account a mandatory relevant consideration, is rejected for either of two reasons, namely: to the extent that the argument assumes that the Minister failed to take into account those matters set forth in Direction No 65, the assumption is misplaced – although the Direction provides guidance to others exercising powers on behalf of the Minister, the Direction does not apply to decisions made (as in this case) personally by the Minister: cf. NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38 at [6], (2014) 220 FCR 1 at 4 per Allsop CJ and Katzmann J; Tewao v Minister for Immigration and Citizenship [2012] FCAFC 39 at [10], (2012) 126 ALD 185 at 188 per Cowdroy, Reeves and Jagot JJ; and/or to the extent that the argument contends that the Minister failed to take into account the health concerns of Mr Tuala, the reasons provided by the Minister expose those concerns being taken into account. Given that the Minister was not bound by Direction No 65, the exercise of discretion conferred by s 501CA(4) was (accordingly) "unconfined" except to the extent that consideration is to be given to those matters which can be implied from the subject-matter, scope and purpose of the legislation: cf. BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78 at [30], (2017) 252 FCR 82 at 90 per Collier, Murphy and Burley JJ ('BSJ16'). 13 The substance of the first Ground is variously expressed. The Amended Originating Application expresses it as a failure "to take into account the applicant's present health in assessing whether the applicant was a risk of violent re-offending in the Australian community". The Applicant's written submissions expresses it in terms that the Minister "did not take the consideration of risk into account, in that paragraphs [45] to [47] of his decision consider the ability of the applicant to obtain health care in New Zealand which, whilst relevant, does not amount to consideration of another relevant consideration namely the probability of the applicant engaging in offending conduct in circumstances where his recent health issues include" (inter alia) "poor physical health", "swallowing razorblades", "depression" etc. Paragraphs [45] to [47] were expressed (without alteration) as follows: 45. Mr TUALA is 40 years old. The available information indicates that he has health implications associated with his weight. He also receives gout and anti-inflammatory medication for his ankle and back. I note Psychologist, Doctor Ahmed reported on 11 December 2017 that Mr TUALA is in poor health. He has gained 60 kilograms and has a seriously injured Achilles tendon requiring a steroid injection. He was also due for gastric banding surgery and currently weighs 212 kilograms. Mr TUALA is receiving several medications mostly pain related, including anti-inflammatory medication and vitamin D tables. 46. Doctor Ahmed opined that while Mr TUALA did not previously have a psychiatric history, he has symptoms of one currently. He notes isolation for a lengthy period of time is known to have damaging effects on mental health. He notes Mr TUALA physical health is poor, he experiences disrupted sleep and appetite and has not had contact with his family for close to a year. He concludes Mr TUALA would benefit from psychological counselling and the possible addition of an anti-depressant. 47. I have taken the above information into account and I find the medical support available to New Zealand citizens would also apply to Mr TUALA and that this would be of a high standard. Paragraphs [45] to [47] appear in that part of the Minister's reasons where consideration is given to the "Extent of impediments if removed". The Minister's reasons separately address (at paras [74] to [96]) the "Risk to the Australian community". Paragraphs [74] to [96] do not expressly make reference to the status of Mr Tuala's health, other than to note Dr Ahmed's opinion that Mr Tuala did not have a formal psychiatric history in the past. Nor was the status of his health referred to in the "Conclusions" expressed by the Minister (at paras [97] to [105]). 14 It is nevertheless concluded that the first Ground of Review should be rejected because: consideration was in fact given to the status of Mr Tuala's health (at paras [45] to [47]); and there was no requirement that the assessment made as to the status of his health had to be taken into account when separately considering the "Risk to the Australian community". Attempts to confine the manner in which the Minister assesses the risk of harm to the Australian community have been resisted: e.g., BSJ16 [2017] FCAFC 78 at [43] to [45], (2017) 252 FCR at 93 to 94. The Applicant in that case sought to confine the manner in which the Minister was to approach this assessment process to the pursuit of one or other of two "logical pathways" of reasoning and sought to contend that any other approach was "irrational and/or illogical": [2017] FCAFC 78 at [38] and [42], (2017) 252 FCR at 92 and 93. In rejecting the argument, Collier, Murphy and Burley JJ set out the findings made by the Minister in that case, being findings similar to those made in the present case, and concluded as follows (at 93): [43] The Minister is not under an obligation to evaluate in any particular way the risk of harm to the Australian community of the appellant reoffending. In light of these findings the Minister was not required to make findings matching the appellant's prescribed formula, namely to find that the potential harm to the Australian community of the appellant reoffending was so serious that any likelihood of reoffending was unacceptable. Their Honours there placed reliance upon (inter alia) the earlier reasons for decision of Rangiah J in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54 at [71], (2015) 230 FCR 367 at 383. His Honour had there concluded: [71] … It is one thing to conclude, as I have, that the Minister must consider the risk of harm, but it is a step removed to decide that the statute contains an implication that the Minister must evaluate the risk of harm in a particular way. In that matter, Justice North agreed with the reasons given by Rangiah J. Jessup J gave his own reason for also concluding that the appeal should be dismissed. Judicial reluctance to confine the Minister to a particular manner in which consideration is to be given to an assessment of the risk of harm to the Australian community has been repeated in decisions since BSJ16: e.g., Folau v Minister for Immigration and Border Protection [2017] FCAFC 214 at [31] to [32], (2017) 256 FCR 455 at 465 to 466 per Collier J; Maere v Minister for Home Affairs [2018] FCA 1694 at [50] per Bromberg J. 15 Nor in the present case was the Minister required to approach his assessment as to the risk posed by Mr Tuala, should he remain in Australia, by reference to his earlier assessment made as to the status of his health and the "impediments" he would face if he returned to New Zealand. As was the case in BSJ16, it was open to the Minister to conclude (at para [96]) that there was "an ongoing likelihood of Mr TUALA reoffending and if he did reoffend in a similar manner … that could cause significant physical and/or psychological harm to members of the Australian community". That conclusion was open to the Minister given his earlier consideration of (inter alia): Mr Tuala's criminal history spanning some 20 years, "albeit to include some minor offending…" (at para [93]); and the fact that Mr Tuala "has not been deterred previously from offending despite having his wife and family for support…" (at para [94]). 16 The second of the Grounds now relied upon, namely the argument that the Minister failed to give "proper, genuine and realistic consideration" to: the views expressed by Dr Ahmed as to the prospects of Mr Tuala reoffending; and the sentencing remarks of Judge Robison is rejected on the basis that those views and those remarks were taken into account. 17 Dr Ahmed is a Consultant Psychiatrist. He conducted two interviews with Mr Tuala in December 2017. After setting forth the past history of Mr Tuala he expressed (inter alia) the following opinion: … Given the several years of gaol time he has served and his desperate wish to remain with his family in my view it is unlikely he will reoffend… The sentencing remarks of Judge Robison were given in November 2013, following what the Judge described as "a draft set of remarks when it came to the facts in the trial" given in September 2013. Those facts record the rather violent and serious events giving rise to the offences for which Mr Tuala was sentenced. The sentencing remarks given in November 2013, and the remarks now relied upon, were the following: … Mr Tuala does have what I would call a limited criminal history. It should be said at the outset that there are no offences of violence, no firearm offences. Even with this criminal history I suppose one could observe that he is a person who is, generally speaking, a person of good character… 18 In resolving the present Ground, considerable care must be exercised lest an argument as to a failure to give "proper, genuine and realistic consideration" (Khan v Minister for Immigration & Ethnic Affairs [1987] FCA 713 at 11 per Gummow J) turns into "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any Tribunal decision can be scrutinized": Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 at [65], (2001) 106 FCR 426 at 442 per Heerey, Goldberg and Weinberg JJ. "Taken out of context and without understanding their original provenance", the phrase "proper, genuine and realistic" it has been said is "apt to encourage a slide into impermissible merit review": Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45], (2010) 6 ASTLR 339 at 351per Basten JA. Wherever the line between legitimate judicial review and impermissible merits review may be drawn, on the facts of the present case Counsel for Mr Tuala is inviting the Court to go beyond judicial review and inviting the Court to simply express its disagreement with the factual merits of the Minister's decision. 19 The Minister in his reasons for decision expressly refers to the report of Dr Ahmed on a number of occasions. An argument that the Minister did not give consideration to the views expressed in the report does not sit comfortably with the analysis in fact undertaken by the Minister. In addition to the consideration given elsewhere to the views of Dr Ahmed, on the specific concern as to the views expressed in respect to reoffending, the Minister's reasons state as follows: 91. I have considered Mr TUALA's representative's submission that the risk of Mr TUALA reoffending is very low. I have also considered Doctor Ahmed's opinion that Mr TUALA did not have a formal psychiatric history in the past and that Mr TUALA's tertiary qualification and range of skills will be of a benefit to the community. I note Doctor Ahmed's conclusion that given the several years Mr TUALA spent incarcerated and his desperation to be reunited with his family, it is very unlikely that Mr TUALA will reoffend. Any argument that the Minister did not give consideration to the report of Dr Ahmed is, with respect, misplaced. 20 So, too, is the argument that the Minister failed to give "genuine" consideration to the sentencing remarks of Judge Robison. The Minister's reasons thus state in relevant part as follows: 79. The Judge noted Mr TUALA maintained that he was innocent and that the court must consider Mr TUALA's prospect of rehabilitation. I note the sentencing Judge acknowledged that Mr TUALA has a 'limited criminal history' and that prior to his most recent offending he had not been previously convicted of violent offences or firearm related offences. Mr TUALA was referred to as 'a person of good character'. These comments, it may be noted, were made in the context where the reasons: immediately before these comments, record the submission made on behalf of Mr Tuala in respect to the sentencing hearing; and immediately thereafter, refer to the Judge also taking into account "character testimonials". The Minister's reasons (at para [79]), together with the context in which the Minister "noted" the "acknowledgment" of the sentencing Judge, again deny any submission that "genuine" consideration was not given to the remarks of the sentencing Judge upon which emphasis is now sought to be placed. 21 The final Ground sought to be relied upon is expressed in the Amended Originating Application in terms of it being "legally unreasonable on the evidence to arrive at the conclusion that there was a likelihood that the Applicant would re-offend violently". The assessment made by the Minister was that he "could not rule out the possibility of further offending by Mr TUALA". The Australian community, the Minister reasoned, "could be exposed to significant harm should Mr TUALA reoffend in a similar fashion", namely by the commission of crimes "involving a firearm and violence". 22 The written submissions filed on behalf of Mr Tuala correctly identify that the ground of legal "unreasonableness" may (inter alia) focus attention upon the "decision-making process": Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332 ('Li'). Gageler J there set forth some of the difficulties in formulating any test as to what constitutes "unreasonableness" and the difficulties in the application of any test as follows (at 375): Judging unreasonableness [105] "It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason". Review by a court of the reasonableness of a decision made by another repository of power "is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process" but also with "whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law". (citations omitted) The legal standard of reasonableness is not "limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it…": Li [2013] HCA 18 at [68], (2013) 249 CLR at 364 per Hayne, Kiefel and Bell JJ. 23 The written submissions filed on behalf of Mr Tuala seek to challenge the "decision-making" processes of the Minister and the need for "justification, transparency and intelligibility" by contending that: the Minister "ought to have obtained the remarks of the NSW Parole Authority" and that it was "highly probable that this material would be favourable to the applicant on the question of risk of re-offending"; and the separation of Mr Tuala "from his children would not be in their best interest" and that there was a "lack of material upon which to found a conclusion of an unacceptable risk … in making such a finding". 24 This final Ground is also rejected for either of two reasons, namely: to the extent that the submission contends that the Minister ought to have obtained the remarks of the NSW Parole Authority, the submission runs contrary to the established principle that – at least as a matter of general application – there is no duty upon the Minister to make further inquiries and to obtain information in addition to that presented to him for consideration, especially the information provided on behalf of a claimant: cf. Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [52], (2009) 83 ALJR 1123 at 1133 per Heydon J. In circumstances where the material not considered was available to a claimant and was available to be provided by a claimant to the Minister, it is difficult for a claimant to contend that the Minister erred by not calling for that very material which the claimant did not in fact make available; and the conclusion reached by the Minister in respect to his assessment as to what was in the best interests of the children was in fact one favourable to Mr Tuala; but that assessment did not outweigh, in the Minister's assessment, the countervailing considerations (see paras [42] and [105]). 25 The assessment made by the Minister, being an acceptance of Mr uala's submission that the best interests of the children favoured keeping the family together as a "unit" (an assessment made also by reference to the letters written by Mr Tuala's children and the submissions made by his sister), was expressed as follows: 24. In taking into account the above submission I find that Mr TUALA has a close relationship with his four children and that they will suffer if Mr TUALA is returned to New Zealand. I find that it is in the best interest of Kaylani, Silei, Lincoln and Ryder that I revoke the original decision to cancel Mr TUALA's visa, to enable them to live with Mr TUALA as a family unit and be parented and emotionally and financially supported by him. However, the ultimate assessment made by the Minister when reaching his "Conclusion" was expressed in part as follows: 100. In considering, in light of Mr TUALA's representations, whether I was satisfied that there is another reason why the original decision should be revoked, I gave primary consideration to the best interests of Mr TUALA's minor children, Kaylani, Silei, Lincoln and Ryder. I found that their best interests would be served by the revocation of the original decision. 101. In addition, I have considered the length of time Mr TUALA has made a positive contribution to the Australian community and the consequences of non-revocation of the original decision for his other family members. 102. On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crimes committed by Mr TUALA involving a firearm and violence. 103. Further, I find that the Australian community could be exposed to significant harm should Mr TUALA reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr TUALA. This final aspect of the present Ground is to be understood as accepting that part of the findings which is favourable to Mr Tuala (namely the finding that revocation would be in "[the children's] best interests") but contending that the Minister did not "rationally" explain why these "best interests" did not prevail over the risk to the Australian community. Whether any individual person would agree or disagree with the ultimate assessment made by the Minister as to which interest should prevail, is not to the point. What matters, at least from the perspective of judicial review, is that the Minister: sets out the competing interests which are to be taken into account and weighed; and expresses his assessment that he had given "significant weight" to another consideration, namely the "very serious nature of the crimes"; and concludes that his assessment of reoffending prevails. The path of reasoning followed by the Minister was one open to him. 26 The "weight" the Minister gave to competing considerations, again, was a decision open to be made. The submission that there was a "lack of material upon which to found a conclusion of an unacceptable risk" is rejected. The final Ground is, essentially, an impermissible challenge contending that the assessment as to the best interests of the children should have outweighed the assessment as to the risk of reoffending. CONCUSIONS 27 None of the proposed Grounds set forth in the Amended Originating Application have any merit. 28 The Extension of Time within which to file the Originating Application (or to file any Amended Originating Application) is thus refused. The Objection to Competency is upheld. There is no reason to extend time only to permit further consideration of proposed Grounds which have no merit. 29 There is no reason why costs should not follow the event. THE ORDERS OF THE COURT ARE: 1. The Application for an Extension of Time filed on 24 October 2018 is refused. 2. The proceeding is dismissed. 3. The Applicant is to pay the costs of the Respondent, either as assessed or agreed. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 15 March 2019