Federal Court (Full Court). Could a conclusion that a non-citizen posed a risk of reoffending similar to other ordinary Australian residents rationally support a conclusion that the risk was unacceptable? Can it be said that "a finding that the appellant’s conduct has not been tested in the community does not establish that the appellant is a risk of reoffending"?
Some of the questions to the Full Court of the Federal Court (FCFCA) were as follows:
Question 1: Can it be said that, although the Minister can consider the expectations of the Australian community for the purpose of s 501CA(4) of the Migration Act 1958 (Cth), such expectations "would only be relevant to the Minister’s decision if and in so far as they were based on a full understanding of all relevant facts and circumstances"?
Question 2: Is the power to revoke the cancellation of a visa under s 501CA(4) discretionary?
Question 3: Can it be said that "one of the matters which informs the legal standard of reasonableness is whether the subject matter of the power is substantive or procedural"?
Question 4: Can it be said that "a decision-maker, exercising power under s 501CA(4) or a power to cancel a visa, is entitled to conclude that even a low risk of reoffending is unacceptable if the gravity of the harm that might eventuate from the reoffending is sufficiently serious"?
Question 5: If the answer to Question 4 is 'yes', does it follow that "a decision-maker’s findings with respect to the risk to the Australian community of an applicant reoffending is beyond judicial review"?
Question 6: Can it be said that "a conclusion that the appellant represents an unacceptable risk of harm to the Australian community must be based on probative evidence concerning the risk (or likelihood) of the appellant committing an offence of a particular kind in the future"?
Question 7: Can it be said that the Minister "had no duty to evaluate the risk of reoffending in any particular way or to ascribe any particular characterisation to the quality of the risk"?
Question 8: If the answer to Question 7 is 'yes', is it nevertheless the case that "a conclusion that the appellant posed a risk of reoffending similar to other ordinary Australian residents could not rationally support a conclusion that the risk was unacceptable"?
Question 9: The Minister found that the Appellant was an ongoing risk because he would lack “immediate support” in the community and because his conduct had not been tested in the general community. Can it be said that "a finding that the appellant’s conduct has not been tested in the community does not establish that the appellant is a risk of reoffending"?
The FCFCA answered those questions as follows: