Federal Court. In assessing the risk of a non-citizen re-offending for the purpose s 501(2) of the Migration Act 1958 (Cth), is it unnecessary for a decision-maker to descend to a level of granularity of assessing the risk of specific future criminal conduct, as that would "require the Minister to either develop superhuman prescience or engage in what could only be wild speculation which would ultimately be meaningless"? Is there a "period of limitation in the Act which might prevent the Minister taking action under s 501(2)"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: May vitiating unreasonableness "arise in the context of the making of particular findings in reliance on which a discretion is subsequently exercised", with the consequence that, "if the reasoning actually engaged in by the Minister in reaching the conclusion that [the Applicant] remained at risk of reoffending met the standard of legal unreasonableness, the subsequent exercise of power was affected by a jurisdictional error, even though there existed an alternative logical pathway to the conclusion about that risk"?
Question 2: In assessing the risk of a non-citizen re-offending for the purpose s 501(2) of the Migration Act 1958 (Cth), is it unnecessary for a decision-maker to descend to a level of granularity of assessing the risk of specific future criminal conduct, as that would "require the Minister to either develop superhuman prescience or engage in what could only be wild speculation which would ultimately be meaningless"?
Question 3: In assessing the risk of a non-citizen re-offending for the purpose s 501(2), could the decision-maker be "required to postulate the wide range of particular permutations of events which might arise" if it "sought to evaluate the probability of a person reoffending in a manner identical to past offending"?
Question 4: Is there a "period of limitation in the Act which might prevent the Minister taking action under s 501(2)"? In other words, is there an implication in the Act that "the Minister cannot exercise the power if the events on which he relies occurred many years previously"?
Question 5: May the government "alter its policy as to when and in what circumstances consideration of the power in s 501(2) might be exercised"?
Question 6: If the answers to Questions 4 and 5 are 'no', may the lapse of time nevertheless "have the consequence that factors in favour of not cancelling a visa will have greater weight"?
The FCA answered those questions as follows: