FEDERAL COURT OF AUSTRALIA
Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The appellant is granted leave to amend the Notice of Appeal by adding ground of appeal 3 substantially in the terms of that paragraph in the proposed Amended Notice of Appeal filed on 9 December 2015.
2. The appeal is allowed.
3. The orders made by Pagone J on 7 August 2015 are set aside.
4. A writ of certiorari issue, quashing the decision of the respondent made on 17 April 2015 to cancel the appellant’s Absorbed Person visa.
5. A writ of prohibition issue, prohibiting the respondent and his delegate, servants and agents from acting upon or giving effect to the decision.
6. The respondent pay the appellant’s costs of the appeal and the costs of the proceeding before Pagone J.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
NORTH J:
1 Before the Court is an appeal from orders made by a judge of this Court on 7 August 2015. The primary judge refused the application made by the appellant, Albert Ronald Cotterill, for judicial review of the decision made by the Minister for Immigration and Border Protection, the respondent, to cancel the appellant’s Absorbed Person visa.
2 The appellant was born on 4 June 1943 in England, and migrated to Australia with his parents on 4 January 1951. The appellant was then seven years old.
3 By operation of the provisions of the Migration Act 1958 (Cth) (the Act) from 1 September 1994 the appellant was taken to have been granted an Absorbed Person visa. The visa allowed the appellant to stay in Australia indefinitely. However, the visa was subject to the provisions of the Act, including ss 501(2), (6) and (7) which provide:
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
…
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
Substantial criminal record
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
4 On 26 November 2012, the appellant pleaded guilty in the Sunshine Magistrates’ Court to two counts of gross indecency in the presence of a girl under 16, two counts of indecently assaulting a male under 16, and one count of unlawfully and indecently assaulting a girl. The appellant was sentenced to 12 months imprisonment on each charge. The term of imprisonment on each charge was partially suspended so that the term to be served was three months. All sentences were to be served concurrently. The Court made a sex offender registration order which required the appellant to report to Victoria Police for 15 years. The magistrate recorded, as required, that in respect of each charge, but for the plea of guilty, she would have imposed a sentence of two years imprisonment with a minimum term of one year.
5 Because the appellant was sentenced to a term of imprisonment of 12 months or more, the Minister found that the appellant did not pass the character test referred to in s 501(2) of the Act. There is no challenge to that aspect of the decision.
6 The Minister then considered whether to exercise his discretion under s 501(2) to cancel the appellant’s visa. The exercise of that discretion is in issue on this appeal. As required by s 501G(1)(e) of the Act the Minister provided written reasons for his decision.
THE MINISTER’S REASONS
7 The most convenient way to understand the reasoning of the Minister is by commencing with reference to the following summary of his conclusions:
60. Mr COTTERILL has committed serious crimes that have caused his victims to suffer serious harm. In particular, I find that Mr COTTERILL's sexual offending against his three young children, vulnerable members of the community, is contrary to values held by Australian society. Such a person should generally expect to forfeit the privilege of staying in Australia.
61. I found the above consideration outweighed the countervailing considerations in Mr COTTERILL's case, including his long and deep ties to Australia, especially to his partner of 30 years who is unwell and requires his care. I have considered his age of 71 years, his poor health, long employment history, social and community ties to Australia, the adverse impact his removal would have on his elder sister and family, on his five adult daughters, two adult stepchildren and two adult step grandchildren, as well as the best interests of his 26 grandchildren, six great grandchildren and two step grandchildren. I have given weight to the consideration that higher tolerance should be accorded to him given that he has lived here for 64 years arriving as a seven-year-old child, and had lived in Australia for at least 12 years when he commenced the sex offences. I have also given weight to the fact that he has spent some 38 years in the community since his last offence, has spent some two years in the community since his release from prison, and has completed a 12 month good behaviour bond. I have also considered the length of time Mr COTTERILL has made a positive contribution to the Australian community and the consequences of my decision for minor children and other family members.
62. In reaching my decision I concluded that Mr COTTERILL represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.
[Emphasis added]
8 That summary discloses that the Minister took into account factors which militated against cancelling the appellant’s visa. However, those factors were not sufficient to outweigh:
(a) the serious nature of the offending;
(b) the fact that the offending had caused his victims to suffer serious harm; and
(c) the risk of harm to the Australian community if the appellant was permitted to remain in Australia.
9 It is necessary to examine the Minister’s reasons in relation to the seriousness of the offending and the risk of harm to the Australian community. Each of these matters was considered in a separate section of the reasons.
Seriousness of the Offending
10 As to the nature of the offending, the Minister said at [10]:
10. In considering the nature and seriousness of Mr COTTERILL's criminal offending I note that sexual offences are viewed very seriously, and that crimes against vulnerable members of the community, such as minors, are also serious.
11 The Minister then set out the details of each of the convictions and noted the appellant’s age when each offence was committed. The appellant was between 29 and 31 years when the offence of indecent assault of a male under 16 was committed, was between 30 and 31 when the other such offence was committed, was between 32 and 33 when the offence of unlawfully and indecently assault a girl was committed, and was between 19 and 31 years when the offences of gross indecency in the presence of a girl under 16 were committed.
12 The Minister’s reasons then continued:
15. While sentencing remarks are unavailable, Mr COTTERILL has claimed that three of his eight children brought the trumped up charges against him. His partner of 30 years stated that he was wrongly accused of molesting his three children. One of his daughters said that the accusations made by her three siblings "were fabricated with the help of” her and their biological mother.
16. Mr COTTERILL stated he did not do anything to his son, but admitted to being naked when speaking to him about sex, that he did briefly expose himself to his eldest daughter, and that he did not offend against his other daughter as he "was working 2 jobs round the clock and was rarely home".
13 Finally, in this section, the Minister referred to the disposition of the charges by the Magistrates’ Court thus:
17. For the five offences, the court imposed a concurrent term of 12 months imprisonment and partially suspended the sentence after three months had been served. The court ordered that Mr COTTERILL report to police for a period of 15 years in accordance with the Sex Offender Registration Order.
18. To reflect the overall criminality in the case, the court noted that but for the pleas of guilty the sentence imposed on each count would have been two years with a minimum of one year.
19. I note the information Mr COTTERILL provided regarding the circumstances of his sexual offending. I adopt the judicial findings and view Mr COTTERILL's sexual offending as very serious. Moreover, I view the crimes against the three child victims - vulnerable members of the community - heighten the seriousness of his conduct.
20. I find that the convictions and the overall disposition of 12 months imprisonment, as well as the order that Mr COTTERILL report to police for a period of 15 years in accordance with the Sex Offender Registration Order reflect the seriousness of his offending.
The risk of harm to the Australian community
14 As to the risk of harm to the Australian community, the Minister commenced this section of his reasons thus:
21. There is no information indicating what might have contributed to his sexual offending behaviour. While Mr COTTERILL has claimed the sexual charges brought against him were "rubbish", I find there are no causal factors apparent in his sexual offending.
15 Then, the Minister set out some further information provided by the appellant about the sexual offending as follows:
23. Regarding the sexual offending, Mr COTTERILL has claimed that his son and two of his daughters told police he sexually assaulted them some 40 years ago, and that the charges brought against him were "rubbish". He stated that his other five daughters believed he was set up and that they “got away with it” mainly because his "records from the Victorian Railway were destroyed". He said that he "had to plead guilty to things I did not do or they would lock me up for 8 yrs", that he eventually received three months imprisonment and a nine month good behaviour bond, and that since his release he reports to police as required.
24. In relation to his son, Mr COTTERILL said he did not do anything to him, but admitted to being naked when speaking to him about sex. Regarding his eldest daughter, he said after briefly exposing himself to her he immediately “thought to myself that it was a stupid thing to do and regretted it happening". He denied that he offended against his other daughter.
16 Next, the Minister recorded statements of general support for the appellant from one of his daughters, the appellant’s partner of 29 years, the appellant’s stepson and stepdaughter, and the appellant’s 78 year old sister. In particular, the reasons referred to the view of one of the appellant’s daughters thus:
25. One of Mr COTTERILL's daughters stated that her three older siblings fabricated the sexual charges against their father with the help of their biological mother, and that two of her siblings were “drug affected and unhappy" when they made the accusations. She said that she was 14 when her biological mother left her and her three other sisters in Mr COTTERILL's care, that she continued to live with him until she was 16 years old, and that at the time her father also helped to raise his partner's seven year old daughter "with no physical signs of abuse". She stated further, if needed, she would trust her own three children with her father.
17 The Minister then drew these issues together as follows:
30. I view Mr COTTERILL's denial and the supporting letters in the face of evidence indicating that he did plead guilty to the sexual offences of which he was convicted on 26 November 2012, and that but for the pleas of guilty the sentence imposed on each count would have been two years with a minimum of one year.
18 In the concluding paragraphs of this section the Minister discussed the risk that the appellant would reoffend as follows:
31. In considering the risk Mr COTTERILL's conduct may be repeated, I have taken into consideration the information that he was not required to undertake any sex offenders courses during his three months imprisonment, that for about 51 years he had no other convictions, that he has not offended since his November 2012 convictions and since his release from prison in February 2013, and that he has been involved with a men's Christian support group since his release. I have also taken into account character references from his family and friend, and his age, medical conditions, physical frailty, as well as the fact that he is subject to reporting requirements to police.
32. In considering the likelihood of Mr COTTERILL engaging in further criminal or other serious conduct, I have given weight to the fact that Mr COTTERILL has spent since 1976, a period of some 38 years in the community since his last offence. I also note that he has spent some two years in the community since being released from jail in February 2013, after serving three months imprisonment, and has completed a 12 month good behaviour bond.
33. While taking account of all of the above issues, I find that there is low risk he may re-offend, and that even if Mr COTTERILL poses only a low risk of re-offending, serious harm could result to a member of the Australian community if he were to re-offend in a similar manner.
THE JUDGMENT OF THE PRIMARY JUDGE
19 Before the primary judge the appellant contended that there was no clear basis on which the Minister could find that the offending was very serious, that the offences caused the victims to suffer serious harm, or that there was a risk, even a low risk, of reoffending. These conclusions were unreasonable in the sense explained in the judgment of Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li), namely, that they lacked an “evident and intelligible justification”.
20 The primary judge rejected these arguments.
21 As to the seriousness of the offending, the primary judge said that the question was one of fact for the Minister to determine. The orders of the Magistrates’ Court recorded the offences, the sentences imposed, and also the sentences that would have been imposed if the appellant had not pleaded guilty. That was sufficient evidence to support the conclusion that the offending was serious, even though the Minister did not have details of the circumstances of the particular offences.
22 Then, as to the Minister’s finding that the offences committed by the appellant caused his victims to suffer serious harm, the primary judge held that this finding was open on the material available. He said:
14 … It is of the nature of such crimes against children that they will be caused harm without the need for direct evidence of actual harm. It was not a finding that required the Minister to obtain any evidence, or to have any further knowledge, of the foundational conduct of the particular offences charged for the Minister to conclude that the offending, in fact, did cause serious harm.
23 As to the risk of the appellant reoffending, the primary judge referred to the matters recorded in [31] – [32] (and extracted in [18] of these reasons for judgment) of the Minister’s reasons which the Minister took into account and said:
16. … Many might reasonably conclude from these facts that Mr Cotterill posed no future risk of reoffending rather than that he posed a low risk, but the Minister's finding of a low risk was one that was open to him: see also Graff v Minister for Immigration and Border Protection [2014] FCA 1125 at [37]. He was not persuaded that there was no risk in view of the fact of Mr Cotterill having offended. The Minister was not required to express his view in percentage terms and it is difficult to be precise about the risk of reoffending: Coderre v Minister for Immigration and Border Protection [2014] FCA 769 at [36].
24 The primary judge concluded at [17]:
The fact is that Mr Cotterill was found to have committed certain offences and it was not “entirely illogical” for the Minister to say that there was no risk of reoffending. The Minister’s conclusion was that the risk in this case, however low, was outweighed by the Minister’s countervailing considerations that Mr Cotterill represented an unacceptable risk to the Australian community. Minister Dutton was not bound to find that Mr Cotterill posed no risk of reoffending and, in that context, the finding that such risk as there was, was “low” was open to the Minister on the material before him: cf Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705, [64].
25 The primary judge then rejected the appellant’s argument that the Minister had failed to give proper or genuine consideration to the risk of harm posed by the appellant’s continued presence in Australia.
THE GROUNDS OF APPEAL
26 The Amended Notice of Appeal filed on 9 December 2015, pursuant to leave granted by the orders accompanying these reasons, advances two original grounds and one additional ground of appeal.
27 The first ground of appeal is that the primary judge erred by failing to hold that the Minister’s decision to cancel the appellant’s visa was unreasonable, illogical or irrational and thereby infected with jurisdictional error.
28 As argued, this ground raised the questions whether the Minister’s findings that:
(a) the appellant posed a risk of reoffending;
(b) the appellant’s offending was serious; and
(c) the appellant’s offending caused serious harm to his victims;
lacked an evident and intelligible justification.
29 The second ground of appeal is that the primary judge erred by failing to hold that the Minister failed to give proper or genuine consideration to the risk of harm posed by the appellant’s continuing presence in Australia. It was common ground that the outcome of this ground would follow the outcome of Ground 1. No additional or separate argument was addressed to Ground 2.
30 The additional ground of appeal is that the Minister failed to take into account a relevant consideration, namely, the possible consequence of the decision that the appellant might face “prolonged and possibility indefinite detention” because of his health condition.
THE APPELLANT’s SUBMISSIONS
31 Counsel for the appellant submitted that whether the exercise of discretion by the Minister was unreasonable, illogical or irrational depends on determining whether the decision was arbitrary, capricious or devoid of common sense: Li per French CJ at [28], or that it lacked an evident and intelligible justification: Li per Hayne, Kiefel and Bell JJ at [76].
32 Where the decision maker provides reasons, the justification for the decision must be found in those reasons: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 (Singh) at [47].
The risk of reoffending
33 In this instance the Minister considered the risk of harm to the Australian community as a factor relevant to his decision to cancel the appellant’s visa. The conclusion that there was a risk to the Australian community from the appellant’s continued presence in Australia was based on the assessment that there was a low, but not no, risk of the appellant reoffending. That conclusion lacked an evident and intelligible justification.
34 The matters on which the Minister relied to come to the view that there was a low risk of reoffending, set out in [31] and [32] of his reasons, supported the absence of any risk. Those matters were that:
the appellant was not required to undertake a sex offenders course during his three months imprisonment;
for about 51 years the appellant had no further convictions. The period of 51 years started from February 1961, when the appellant was convicted of shop breaking and stealing and illegal use of a motor car, until November 2012 when he was convicted of the sex offences;
the appellant had not offended since his 2012 convictions;
the appellant had not offended since his release from prison in February 2013;
the appellant has been involved with a men’s Christian support group since his release;
the character references from family and a friend suggested that the offences were out of character;
the appellant suffered from poor health and physical frailty;
the appellant is subject to reporting requirements to police;
the appellant has spent since 1976, a period of 38 years in the community since the last offence;
the appellant had spent two years in the community since he was released from jail after serving three months imprisonment; and
the appellant had completed a 12 month good behaviour bond.
35 The written submissions filed on behalf of the appellant contended:
27.2 None of the matters identified by the Minister could support a finding that there was any risk of Mr Cotterill again committing an offence of the kind of which he had been convicted in 2012.
The seriousness of offending
36 In the course of the hearing of the appeal, the Court drew counsel’s attention to the reliance placed by the Minister on an assessment of the appellant’s offending as serious. As a result, counsel for the appellant applied for and was granted leave to file further submissions on the issue, and the Minister was granted leave to respond in writing.
37 The Minister found that the appellant committed “serious crimes that have caused his victims to suffer serious harm” ([60]). Earlier in analysing the nature of the criminal conduct the Minister adopted “the judicial findings and view Mr Cotterill’s sexual offending as very serious” ([19]). The Minister also found that the disposition by the Court reflected “the seriousness of his offending” ([20]).
38 The written submissions filed on behalf of the appellant contended that the Minister’s assessment of seriousness of the appellant’s offending was a critical step in the path of reasoning which led the Minister to cancel the appellant’s visa. The written submissions further contended that there was no evident or intelligible justification for the Minister’s conclusion that the appellant’s offending was serious because:
the Minister had no information about the offending except some information from the appellant;
in contrast to other cases of this nature, the Minister did not have any reasons from the sentencing court or a police summary of the offending;
the nature of the charges potentially encompassed a broad range of conduct varying significantly in seriousness;
the charges were brought in respect of very long periods from 1 January 1963 to 6 December 1976 without any indication whether the conduct was continuous, repeated, or isolated and confined to a relatively short period. In fact, the appellant did not have any children at the time of the alleged commencement date, 1 January 1963. His first child was born in August 1963;
the Minister referred to adopting “the judicial findings and view[ing] Mr Cotterill’s sexual offending as very serious”. However, there was no judicial finding other than the record of the orders which showed that the appellant pleaded guilty, the sentence imposed, and the mandatory requirement under s 6AAA of the Sentencing Act 1991 (Vic) to record the sentence which would have been imposed save for the plea of guilty; and
the Minister viewed the requirement that the appellant report to police for 15 years as reflecting the seriousness of the offending, whereas the reporting condition was mandatory following a conviction: Sex Offenders Registration Act 2004 (Vic) s 34(1)(b). This factor, so it was argued, could not establish that the appellant’s offending was serious.
Serious harm to victims
39 A further critical step in the Minister’s reasoning, so it was contended, was that the serious crimes “have caused his victims to suffer serious harm” ([60]). There was no evidence of the details of the appellant’s conduct and no evidence of serious harm having been suffered by the victims. There was no evident or intelligible justification for the Minister’s conclusion as to the seriousness of the consequences of the appellant’s offending.
Indefinite detention
40 The third ground of appeal relied on an argument which was not advanced to the primary judge. The appellant submitted that it was expedient in the interests of justice to allow him to rely on it on appeal. The Minister did not oppose that course and leave should be granted to the appellant to rely on the argument on appeal.
41 In his reasons the Minister accepted that the appellant suffered from cervical vertigo, spinal stenosis, right knee replacement, heart problem and pleural disease caused by asbestos ([54]). A large volume of the appellant’s medical records were provided to the Minister as an attachment to the Issues Paper prepared by the Department for his consideration. The Minister also came to the view that the appellant may face substantial impediments on return to the UK given, inter alia, his poor health.
42 In a submission to the Minister which attached the Issues Paper and the draft reasons, the Assistant Secretary of the Department provided a concise summary of the background of the case which included reference to the appellant’s health as follows:
12. He has a number of medical conditions including cervical vertigo, spinal stenosis, right knee replacement, heart problem, and pleural disease caused by asbestos. It is possible that in the event of a cancellation he may not be able to be returned to the United Kingdom due to his health condition and would face prolonged and possibly indefinite detention.
[Emphasis added]
43 The possibility of the appellant having to face indefinite detention if his visa was cancelled was not referred to in the Minister’s reasons. The inevitable inference is that the Minister either gave no thought to, or regarded as irrelevant, the prospect of the appellant’s indefinite detention: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 (Yusuf) per Gleeson CJ at [5], Gaudron J at [35], McHugh, Gummow and Hayne JJ at [69].
44 The prospect of indefinite detention was a practical consequence of a decision to cancel the appellant’s visa. It was not a legal consequence of that decision as in the case of NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38 (NBMZ) per Allsop CJ and Katzmann J at [10] and Buchanan J at [178].
45 The issue was raised before the Minister as a possible practical consequence. Having regard to the nature of the decision to be made by the Minister, the possibility of indefinite detention had to be balanced against the countervailing considerations. It was a relevant consideration having regard to the subject matter, scope and purpose of s 501 of the Act: Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 at 39 – 40.
THE MINISTER’S SUBMISSIONS
46 Counsel for the Minister contended that the concept of unreasonableness is chiefly concerned with unreasonable outcomes of an exercise of power not merely with allegedly unreasonable findings of fact. Unless an unreasonable outcome is made out, it will not suffice to establish unreasonableness in the making of a finding. This approach was said to flow from Li. In that case, so it was submitted, the unreasonableness consisted in the lack of a logical connection between the refusal of the adjournment and the factors relied on by the Tribunal, namely, that the appellant had already had opportunities to put her case without consideration of any countervailing considerations. Counsel for the Minister argued that, in contrast, in the present case there was a logical connection between the Minister’s exercise of discretion to cancel the appellant’s visa, and the finding of a low risk of reoffending. The authorities, it was argued, do not support the approach taken by the appellant which challenged, not the outcome, but the alleged unreasonableness of the finding of a low risk of reoffending. That approach is, in essence, an impermissible attempt to review the merits of the finding. When properly analysed the appellant’s argument relies on the no evidence ground, namely, that there was no evidence to support the finding. That ground could not succeed because there was evidence which supported the Minister’s conclusions.
Risk of reoffending
47 It was then contended on behalf of the Minister that the logic by which he reached the conclusion that the risk of reoffending was low was evident from the Issues Paper provided to the Minister. The written submissions filed on behalf of the Minister contended that it can be inferred that the Minister considered the Issues Paper and its attachments: Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513; [2015] FCAFC 83 (Ayoub) at [49] per Flick, Griffiths and Perry JJ; and Gbojueh v Minister for Immigration and Border Protection [2015] FCAFC 43 (Gbojueh) at [16]-[20] per Allsop CJ, Kenny and Wigney JJ.
48 It can be inferred that the Minister considered the Issues Paper because he stated:
I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act and (2) all other evidence available to me, including evidence provided by, or on behalf of Mr COTTERILL.
49 Further, it can be taken that the Minister adopted the reasoning in the Issues Paper because he prefaced his reasons thus:
8. … having assessed the information set out in the Issues Paper and attachments, …
50 The Issues Paper raised two matters not referred to in the reasons. One of those matters was raised as follows:
66. In considering Mr COTTERILL’s rehabilitation and the risk of him re-offending, you may wish to be mindful of the comments made by Matthews J (the then President of the AAT) in Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51] that:
Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending.
51 The Issues Paper also invited the Minister to take into account the applicant’s “insight into the offending” ([48]). On behalf of the Minister it was argued that correspondence received from the appellant showed a lack of insight into his offending. The appellant wrote that the charges on which he was convicted were “trumped charges” and “rubbish”. He said as to one of the allegations that “it never happened”. He said that he “had to plead guilty to things I did not do or they would lock me up for eight yrs”, and that “they got away with it”. He claimed that their story was “based on lies and fraud”.
52 Further, counsel for the Minister said that the appellant had provided no professional assessment of his wrongdoing to the Minister.
53 Additionally, there were a number of factors referred to in the reasons which supported the risk of reoffending. The Magistrates’ Court order recorded that, but for the pleas of guilty, the sentence on each count would have been imprisonment for two years with a minimum of imprisonment for one year, and the appellant was ordered to report to police for 15 years. There was no information about what contributed to the appellant’s offending conduct.
54 The Minister weighed these matters in the balance against the countervailing considerations. The finding of a low risk of reoffending was not arbitrary or capricious, devoid of common sense or lacking an evident or intelligible justification. The decision was open to the Minister on the material available to him.
Seriousness of offending
55 As to the post-hearing argument of the appellant that the finding of the seriousness of the offending had no evident justification, the Minister contended in written submissions that the question of seriousness was a question of fact for the Minister. He relied on the judgment of Wigney J in Te Puke v Minister for Immigration and Border Protection (2015) 230 FCR 499; [2015] FCA 398 (Te Puke) at [96] where his Honour said:
It was entirely open to the Minister to form his own view about the seriousness of the offence based on the objective facts. It was also entirely up to the Minister to decide what facts he considered relevant to that issue and the weight to be afforded to them.
56 There was evidence which supported the Minister’s view. There were five convictions. They were for unlawful/indecent assaults and gross indecency. They were committed on vulnerable minors. The victims were three of his children. The statement of the sentencing court was that but for the plea of guilty the sentence imposed would have been imprisonment for two years with a minimum of imprisonment for one year. The fact that the appellant was placed on the sex offender register with the requirement to report to police for 15 years reflected the seriousness of the offences. Whilst those consequences applied as a result of the convictions, the impositions of such consequences demonstrated the serious view taken by the State to such offending.
Serious harm to victims
57 As to the post-hearing argument of the appellant that the finding of the Minister that the appellant’s offending had “caused his victims to suffer serious harm”, the Minister relied on the primary judge’s view at [14] that:
It is of the nature of such crimes against children that they will be caused harm without the need for direct evidence of actual harm. It was not a finding that required the Minister to obtain any evidence, or to have any further knowledge, of the foundational conduct of the particular offences charged for the Minister to conclude that the offending, in fact, did cause serious harm.
Indefinite detention
58 In relation to the third ground of appeal the Minister contended that the circumstances demonstrated that the Minister did consider the possibility of prolonged or possibly indefinite detention if the appellant’s visa was cancelled. The Minister signed and dated the submission which attached the Issues Paper and the draft reasons. That indicated that he was aware of it. The attached Issues Paper referred to the appellant’s medical condition and appended the appellant’s medical record. In his reasons the Minister stated:
53. I have had regard to the impediments that Mr COTTERILL will face if removed from Australia to his home country in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of the United Kingdom.
54. Mr COTTERILL is 71 years of age with a number of medical conditions for which he takes medication, including cervical vertigo, spinal stenosis, right knee replacement, heart problem, and pleural disease caused by asbestos. He has no relatives in the United Kingdom.
59 The Minister stated in his reasons that although the standards of health, social, and other services in the United Kingdom are comparable to those in Australia, the appellant may face substantial impediments given his poor health. The Minister stated that he had taken into account all evidence available to him ([59]). He said ([61]) that he had taken into account the appellant’s poor health.
60 It follows that, the Minister had considered the appellant’s health in determining whether he could be returned to the United Kingdom.
61 NBMZ is distinguishable because in that case the briefing material before the Minister did not refer to the possibility of indefinite detention at all, the indefinite detention flowed as a legal, not a practical consequence of the Minister’s decision, and the Minister considered the appellant’s health issues and found that the appellant could return to the United Kingdom notwithstanding those issues.
CONSIDERATION
Introduction
62 Three of the four questions raised by this appeal concern the contention that the Minister’s decision was unreasonable in that it lacked an evident and intelligible justification. Some of the principles which apply to a consideration of that issue should be referred to.
63 A statute which grants a power is presumed to require that the power be exercised in accordance with reason. When assessing whether a power has been exercised reasonably the Court exercises a supervisory jurisdiction. Hence, it is not entitled to substitute its own view for the view of the decision maker entrusted with the power. Rather, the Court enquires whether the decision was made within the bounds of legal reasonableness. It is not the role of the Court to determine whether it would have come to the same view or not.
64 The starting point for the inquiry is a consideration of the scope and purpose of the statutory power. A decision is legally reasonable only if it falls within the statutory boundaries. Many different descriptions of what amounts to unreasonableness in the exercise of statutory power have been formulated by the courts. A decision which is so unreasonable that a reasonable decision maker could not have arrived at it falls outside the standard of reasonableness. But unreasonableness is not confined to that category of decision. For instance, it extends to a decision which lacks an evident and intelligible justification. The many descriptions of the requirements of reasonableness in decision making are gathered together in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [5] per Allsop CJ (Stretton). Thus, a decision will be unreasonable if the power to make it is exercised according to private opinion or humour, if it is made dishonestly, capriciously, arbitrarily or if it lacks a rational ground for belief.
65 The principles applicable to unreasonableness as a ground for impugning statutory decision making have recently been reiterated and explained by the High Court in Li and by Full Courts in Singh and Stretton. The principles are not generally in contest in this appeal. However, certain particular aspects of the application of those principles are addressed in the discussion below.
66 In Singh the Full Court said at [42]:
Unlike some grounds of review, legal unreasonableness is invariably fact dependent, so that in any given case determining whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence before the Court, including any inferences which may be drawn from that evidence.
The risk of reoffending
67 In the present case, the Minister’s reasoning which led to his conclusion that the risk of the appellant reoffending was low appears in [31] and [32] of his reasons which are extracted at [18] of these reasons for judgment.
68 The matters relied on by the Minister were that the appellant had not been required to attend a sex offenders program in jail, he had no convictions for 51 years from his conviction in 1961 for shop breaking and stealing, and illegal use of a motorcar until his convictions in 2012 for the sexual offences, he had not offended since his convictions in 2012 or since his release from jail in 2013, and he has been involved with a men’s Christian group since his release. The Minister said he took into account the character references from the appellant’s family and friend. The substance of those references are set out in [25] to [29] of the Minster’s reasons. The appellant’s daughter said that she lived with the appellant when her biological mother left her and her three sisters. She lived with the appellant until she was 16. Further, the appellant raised his partner’s seven year old daughter with no signs of physical abuse. The appellant’s daughter said she would trust her own three children with the appellant. The appellant’s partner of 29 years said that the appellant was kind, reliable, considerate, trustworthy and hardworking. She said her own children looked up to him as a good stepfather whom they could go to with their problems. The appellant’s stepdaughter said that she had known the appellant for 30 years and had lived with him for 15 years and that he was a father figure to her. The appellant’s step-son said that he had never noticed untoward conduct from his step-father. The appellant had looked after his own children many times. The appellant had looked after his two sons as far back as 16 years ago and looked after his two daughters during school holidays for the last two years. The appellant’s sister said the appellant was a hardworking family man, and a caring and responsible father even after his divorce.
69 The Minister also said he took into account the appellant’s age, namely, that he was 71 years old. The Minister took into account the appellant’s medical condition which was set out in the reasons of the Minister as cervical vertigo, spinal stenosis, right knee replacement, heart problem and pleural disease caused by asbestos. The Minister also said that he took into account the appellant’s physical frailty although the reasons do not elaborate on this aspect. Finally, the Minister said that he took into account that the appellant is subject to reporting requirements to police.
70 None of those matters which the Minister said he relied upon in order to reach the conclusion that the appellant posed a low risk of reoffending supported that conclusion.
71 There are two other references in the section of the Minister’s reasons dealing with the risk of the appellant reoffending which may have been part of the Minister’s reasoning, although not explicitly stated to be so. The Minister stated ([21]) that “[t]here is no information indicating what might have contributed to his sexual offending behaviour … there are no causal factors apparent in his sexual offending.” Whatever relevance this observation has, it cannot support the conclusion that the applicant posed a low risk of reoffending. On that issue the fact that there was no evidence as to the cause of the offending the Minister had nothing to say.
72 Then, the Minister said ([30]) that he viewed the appellant’s denial and the supporting letters in the face of the evidence that the appellant pleaded guilty to the offences. Again, this observation does not provide a basis for the conclusion that the appellant posed a low risk of reoffending. The Minister did not come to a conclusion about the genuineness of the evidence of the appellant’s denial or state that the plea of guilty was or was not inconsistent with that evidence. Without the expression of a view rejecting the appellant’s denial, the Minister’s observation does not take forward the issue of the risk of reoffending. Consequently, neither of these two additional matters provided a rational basis for the conclusion.
73 Counsel for the Minister contended that the Issues Paper could be taken into account in determining the reasoning of the Minister because the Minister adopted the Issues Paper in his reasons. Counsel relied upon Ayoub, in which the Full Court (Flick, Griffiths and Perry JJ) held that a Departmental submission to the Minister, being personally signed by the Minister, could be used to resolve any question as to what the Minister took into account ([49]). Counsel also relied upon Gbojueh, in which the Full Court (Allsop CJ, Kenny and Wigney JJ) held that the contention that the Minister had failed to consider attachments to Departmental submissions could not be maintained ([16]-[20]).
74 The Issues Paper, so it was contended, raised two further issues which justified the Minister’s conclusion that the appellant posed a low, but not no, risk of reoffending even though the Minister did not say that he relied on these factors.
75 The Issues Paper suggested to the Minister that he may be minded to take into account the view expressed by Matthews J in Lam v Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51] that:
Once a person has shown a disregard for the law, it can never be said that there is no risk of reoffending.
76 The Issues Paper also suggested to the Minister “you may also wish to take into account Mr COTTERILL’s overall conduct in the custodial and non-custodial environment and his insight into the offending” (emphasis added). On behalf of the Minister it was further contended that the evidence purportedly showing a lack of insight was both detailed in the Issues Paper and recorded in the Minister’s decision. However, the Minister’s reasons merely set out the material provided by the appellant about the circumstances of his offending by way of background, without drawing any inference from them with regards to insight. Thus, the issue of insight was only raised in the Issues Paper.
77 In Singh the Court said at [47]:
The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the Court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that Court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.
78 The Minister’s argument seems to accept that starting point, but contends that the two additional matters are part of the Minister’s reasons because he incorporated them from the references in the Issues Paper.
79 The contention however, fails at that initial point. The Minister stated in [8] of his reasons that he had assessed the information set out in the Issues Paper and attachments and in [59] that he had considered all the evidence available to him. These statements, however, do not amount to the adoption of the reasoning suggested in the Issues Paper. In both Ayoub and Gbojueh, the Departmental submissions were accepted as showing what the Minister had taken into account in making his decision. In Gbojueh, the fact that the Minister failed to mention in his reasons a consideration put to him in an attachment to a Departmental submission was held to demonstrate that the Minister ascribed little or no importance to that consideration [20]. Those cases dealt with the contention that the Minister had fallen into jurisdictional error by failing to consider relevant considerations, whereas in the present case the contention is that the Minister fell into jurisdictional error by reaching a decision that lacked an evident and intelligible justification. The Minister’s references to the Issues Paper say no more than that the Minister viewed and considered the material provided to him in the Issues Paper for the purpose of determining his own approach. The reasons provided by the Minister, however, made a selection from all of the material provided to him and thereby focused on the matters which the Minister regarded as determinative of his view. He did not select either the view of Matthews J or the existence or lack of insight of the appellant into his offending as matters which motivated his decision. Hence, those matters cannot be regarded as part of the Minister’s reasoning.
80 Then, counsel for the Minister argued that, the conclusion that the appellant posed a low risk of reoffending could be supported on the basis that the appellant had not provided the Minister with any professional opinion to explain the reason for the offending.
81 That consideration was not part of the stated reasons of the Minister and was not suggested in the Issues Paper or in any of the material supplied to the Minister. Consequently, it is not a consideration which can be taken into account to justify the decision made by the Minister for other reasons.
82 Finally, counsel for the Minister argued that the unreasonableness ground was chiefly concerned with unreasonable outcomes and not merely with unreasonable findings of fact. He contended that the appellant challenged the Minister’s finding that the appellant posed a low risk of reoffending without challenging as unreasonable the ultimate decision of the Minister to cancel the appellant’s visa. That characterisation of the appellant’s argument does not represent its full scope. The appellant’s contention was that the finding that the appellant posed a low risk of reoffending was a crucial finding in the process of making the decision to cancel the visa. In other words, the finding was the foundation on which the cancellation decision rested. Without that step on the path of the Minister’s reasoning the decision could not be sustained. The Minister made the existence of a low risk of reoffending a determinative consideration. Having no reasonable basis for the conclusion on that issue, the decision was left without any rational support.
The Seriousness of Offending
83 The structure of the Minister’s reasoning process which led to the conclusions about the risk to the Australian community is set out in [60] – [61] of his reasons. Those paragraphs show that the Minister first made an assessment of the seriousness of the appellant’s offending and then balanced against that evaluation, the countervailing factors militating against cancellation of the appellant’s visa. The Minister’s assessment that the appellant’s offending was serious thus lies at the heart of his reasoning process.
84 That process of reasoning is described at [10] – [13] of these reasons for judgment. The process began with a reference to the community attitude which regards sexual offences against minors as serious.
85 The Minister recorded that the appellant was sentenced to a term of 12 months imprisonment which was suspended after three months served. The Minister also referred to the order which required the appellant to report to the police for 15 years, and that the magistrate recorded that the sentence which would have been imposed but for the plea of guilty was two years with a minimum of one year imprisonment.
86 The Minister did not regard the statement of the elements of the offences alone as sufficient to determine the seriousness of the appellant’s offending because he proceeded to address the particular circumstances which applied to the appellant’s offending.
87 In this regard, the Minister noted ([15]) that the remarks of the sentencing magistrate were not available.
88 The Minister then referred ([15] – [16]) to the views of the appellant, his partner and one of his daughters which were conveyed to the Minister and which were to the general effect that the appellant was wrongly accused of committing the offences. Later the Minister said that he noted ([19]) the information provided by the appellant regarding the circumstances of the offending.
89 Counsel for the Minister relied on statements made in Te Puke, Gbojueh, and Mrayhej v Minister for Immigration and Border Protection (No 2) [2015] FCA 691 (Mrayhej) to the general effect that the Minister was entitled to come to the view that the criminal offending was serious. In each of those cases there were aspects of the sentencing judges’ remarks which might have supported a more lenient view of the offending than the view adopted by the Minister. Those authorities emphasise that the assessment of the material was a matter for the Minister. Thus, for instance in Mrayhej Foster J stated at [56]:
The Minister took the view that the sex offences were "very serious". The Minister was not bound to regard those offences as at the bottom end of the scale of sexual offences merely because the sentencing judge had described them in that way.
90 Those cases contested the evaluation by the Minister of the nature of the offending where there were competing opinions available on the issue based on extensive information about the particular offending which had been provided to the Minister. The evaluation made by the Minister was made by reference to fulsome statements of the facts surrounding the offending.
91 In contrast to those cases, in the present case the Minister had no information from the sentencing magistrate about the offending. The circumstances involved in the offending were not revealed save for the bare statement of the charges themselves. It was not possible for the Minister, acting rationally, to characterise the offending as serious without information about the circumstances in which the offences occurred.
92 Indeed, the limited information which was available to the Minister was supplied by the appellant, his partner and one of his daughters. That information suggested that the convictions were not justified by the circumstances or, at least, they were at a low level of offending. As noted above in relation to the risk of reoffending, the Minister did not say that he accepted or rejected that information but said that he noted it. Without some resolution about that information the Minister could not come to a rational view about the seriousness of the offending.
93 The information on which the Minister relied for his assessment that the offences were serious was the statement of the offences, the sentences imposed, the sentences which would have been imposed but for the plea of guilty, and the fact that the appellant was placed on the sex offender register. The statement of the offences alone did not justify the conclusion that the appellant’s offending was serious because the offences charged were capable of encompassing a large range of offending conduct from the merry drunken flasher in a public place to the calculated conduct in private of a sexual predator. The practical effect of the sentences as a result of both the part suspension and the significant concurrence of the terms of imprisonment could not, without more, justify conclusion that the offending was serious. Likewise, because registration as a sex offender followed as a mandatory consequence of the convictions, the registration of the appellant could not advance the question of the seriousness of offending.
94 It is important to note that nothing written here is intended to suggest that offending against children could not be found to be serious in particular circumstances if a rational basis for that conclusion was disclosed.
95 In respect of this ground the Minister again argued that unreasonableness is not generally an argument applicable to a fact finding but only to the ultimate decision. As with the ground of appeal challenging the Minister’s conclusion that the appellant posed a low risk of reoffending, the challenged conclusion was critical to the final decision so that the irrationality of that finding led to unreasonableness in the outcome.
96 It follows that the conclusion reached by the Minister that the appellant’s offending was serious was without an evident and intelligible justification. It was legally unreasonable.
Serious harm to victims
97 The Minister concluded ([60]) that the appellant’s offending “caused his victims to suffer serious harm”. It was common ground that there was no evidence of harm suffered by the appellant’s victims. The primary judge held that no evidence was required on this subject because it is of the nature of such crimes against children that they will have caused harm.
98 The approach of the primary judge would apply, if the Minister was asking the question whether it is in the nature of such crimes that children will be caused harm. However, the Minister chose to ask whether there was specific harm to the identified children of the appellant. There was no factual basis for the conclusion that they had suffered serious harm. Those children did not provide any information to the Minister. Indeed, if the material supplied to the Minister was to be accepted, those children fabricated the circumstances of the alleged offending.
99 This finding was integral to the Minister’s reasoning and central to the outcome arrived at by the Minister. As the finding was without any basis, it rendered the decision unreasonable.
Indefinite detention
100 The Minister was bound to give the appellant reasons for the cancellation of his visa: s 501G(1)(e) of the Act. That obligation required the Minister to set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based: s 25D Acts Interpretation Act 1901 (Cth).
101 In his reasons the Minister referred to the health of the appellant as described in [42] of these reasons for judgment. That was, however, in the context of the difficulties which might face the appellant if he were removed from Australia. Nowhere in the Minister’s reasons did he consider the effect on the appellant of the cancellation of his visa if the appellant was unable, because of health reasons, to be removed from Australia.
102 In Yusuf, Gleeson CJ said at [5] that where a decision maker bound to give reasons “does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the [decision maker] did not consider the matter to be material”; see also Gaudron J at [37], McHugh, Gummow and Hayne JJ at [69] and Kirby J at [133].
103 The covering submission which attached the Issues Paper and the Minister’s draft reasons alerted the Minister at [12] that a consequence of cancelling the appellant’s visa was that the appellant would be exposed to prolonged and possibly indefinite detention.
104 An analogous situation arose in NBMZ. The appellant, a citizen of Iran, was assessed to be a refugee. Unless he was granted a visa he had to be detained pursuant to the Act until removed from Australia. However, there was no country available to which the appellant could be sent. The Minister refused on character grounds to grant the appellant a protection visa. Buchanan J said at [177] – [178]:
177. … [T]he Minister gave no thought to, or alternatively regarded as irrelevant or not significant, that the applicant would, as both a legal and practical consequence of the decision, face the prospect of indefinite detention if a visa was refused.
178. In my view, the prospect for the applicant of indefinite detention was not a matter which could be overlooked, disregarded or allowed to pass without comment in a proper determination of the application for a visa.
105 Allsop CJ and Katzmann J agreed and said at [16] to [18]:
16. … [T]he written reasons of the Minister may, and generally will (subject to a contrary finding of fact), be taken to be a statement of those matters adverted to, considered and taken into account; and if something is not mentioned, it may be inferred that it has not been adverted to, considered or taken into account: Acts Interpretation Act 1901 (Cth), s 25D, s 501G of the Act and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [5], [37], [69], [89] and [133].
17. Here, it is to be inferred from his statement of reasons that the Minister did not consider or take into account the fact that, if the visa were refused, the applicant would face the prospect of indefinite detention. This was the effect of Australia’s obligation of non-refoulement and ss 189, 196 and 198 of the Act. For the reasons given above and for the reasons given by Buchanan J this matter could not lawfully be overlooked.
18. The above is a sufficient basis to conclude that the Minister’s decision was vitiated by jurisdictional error in his failure to take into account a relevant consideration and for our agreement with the orders proposed by Buchanan J.
106 One difference between the present case and NBMZ is that in NBMZ there was no mention in the Issues Paper of the possibility of indefinite detention. The distinction is, however, not material. The absence of reference to the matter in the reasons demonstrates that the Minister did not regard it as material. The general references by the Minister to having considered the material placed before him do not answer the point.
107 Then, the Minister submitted that in NBMZ indefinite detention was a legal consequence of the Minister’s decision whereas in the present case that consequence was a practical but not legal consequence. However, Buchanan J at [177] drew no distinction between the two, and the majority agreed with him. Further, in principle there is no basis for a distinction. In NBMZ the potential of indefinite detention arose from the lack of any destination for removal and in the present case that potential arose from the state of the appellant’s health. But in both cases, those practical factors resulted in the possibility of indefinite detention by reason for the legal requirement of the statute to detain a non-citizen who does not hold a visa. That is to say, in both cases, there existed a practical situation which had a legal consequence.
CONCLUSION
108 These reasons for judgment explain that the decision of the Minister to cancel the appellant’s visa was vitiated by a number of jurisdictional errors. Consequently, the appeal is allowed. A writ of certiorari will issue to quash the Minister’s decision and a writ of prohibition will issue to prevent any action being taken on it.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. |
Associate:
REASONS FOR JUDGMENT
KENNY AND PERRY JJ:
109 We have had the generous advantage of reading the reasons for judgment prepared by North J. We agree with the orders that he proposes.
110 We are able to state our reasons for agreeing with these proposed orders more shortly than otherwise because North J has set out the legislation and the circumstances relevant to the appeal, including the Minister’s statement of reasons for cancelling the appellant’s visa, the reasons for judgment of the primary judge and the parties’ submissions on appeal.
111 On 17 April 2015 the Minister cancelled the appellant’s absorbed person visa pursuant to s 501(2) of the Migration Act 1958 (Cth) and the appellant was taken into immigration detention on 22 April 2015. On 7 August 2015, the primary judge dismissed the appellant’s subsequent application for judicial review. The appellant appeals from that judgment.
112 By reference to his Notice of Appeal, the appellant argued in substance that the making of the Minister’s decision entailed jurisdictional error because the decision was unreasonable in a way explained in Minister for Immigration and Citizenship v Li [2013] HCA, 249 CLR 332. The appellant supported this argument on three bases, arguing that there was no “evident and intelligible justification” (Li at [76]) for the Minister’s finding: (1) that the appellant represented a low risk, as opposed to no risk, of re-offending; (2) the offending was “very serious”; and (3) the offending “caused his victims to suffer serious harm”.
113 After the hearing of the appeal on 3 December 2015, but pursuant to orders made that day, the appellant also sought leave, formally, to raise a further ground, which had been discussed at the hearing. Under this proposed ground 3, the appellant argued that the making of the Minister’s decision involved jurisdictional error because the Minister had failed to take into account the relevant consideration that a possible consequence of that decision was that the appellant would face prolonged and possibly indefinite detention because of his ill-health.
114 The fact that this ground was not raised before the primary judge does not preclude the Court from entertaining the point on appeal where it is expedient and in the interests of justice to do so, as the authorities make plain: see Summers v Repatriation Commission [2015] FCAFC 36, 230 FCR 179 at [93]-[95] and the authorities there cited. The point here is one of law; and the relevant facts are not in controversy. The Minister has had a full opportunity to address the point in writing. In our view, this is a case in which it is expedient and in the interests of justice to entertain the proposed ground, there being no relevant prejudice to the respondent. Leave should be granted to the appellant to amend his notice of appeal so as to include ground 3.
115 In his reasons, North J details the Minister’s submissions in response to the appellant. We therefore mention below only those parts of the Minister’s submissions that bear on why we would allow the appeal.
116 In our view ground 3 identifies a jurisdictional error in the making of the Minister’s decision.
117 In a submission specifically addressed to the Minister and dated 2 April 2015, there appeared the following paragraph concerning the appellant:
12. He has a number of medical conditions including cervical vertigo, spinal stenosis, right knee replacement, heart problem, and pleural disease caused by asbestos. It is possible that in the event of a cancellation he may not be able to be returned to the United Kingdom due to his health condition and would face prolonged and possibly indefinite detention.
(Emphasis added.)
118 The Minister had before him the appellant’s extensive medical records. The Minister’s statement of reasons included paragraph [54], in which the Minister stated that the appellant “is 71 years of age with a number of medical conditions for which he takes medication”, mentioning particularly cervical vertigo, spinal stenosis, right knee replacement, heart problem, and pleural disease caused by asbestos. In the same paragraph the Minister noted that the appellant “has no relatives in the United Kingdom” and, in paragraph [58], the Minister further noted that the appellant “may face substantial impediments on return [to the United Kingdom], given his age, poor health” and a number of other factors. Subsequently, in paragraph [61], the Minister specifically stated that he had “considered his age of 71 years, his poor health” and other matters in reaching his decision. The Minister also stated that he had considered “all relevant matters … and …all other evidence available to [him]”.
119 At no stage in his statement of reasons, however, did the Minister mention the possibility that a consequence of cancelling the appellant’s visa might be the appellant’s indefinite detention in Australia, because, as paragraph [12] of the submission stated, the appellant’s ill-health might preclude his return to the United Kingdom. The Minister accepted in submissions to this Court that this information was before him when he made the decision to cancel the appellant’s visa and, indeed, the Minister’s counsel drew attention to the fact that the Minister had signed and dated the departmental submission.
120 The Minister submitted, however, that the Court should not conclude that he did not know that there was a possibility that the appellant might be detained indefinitely if his visa were cancelled, given the references in his statement of reasons to the appellant’s medical conditions and poor health and his statement that he had considered all other available evidence, as well as the fact that he had signed and dated the front page of the submission adverting to this possibility. The Minister also submitted that the decision in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, 220 FCR 1 (on which the appellant relied) was distinguishable, because there was no reference in the briefing material in that case to the possibility of indefinite detention and the Full Court identified the Minister’s failure in that case to be a failure to take into account the legal, as opposed to practical, consequences of a decision adverse to the appellant. Lastly, the Minister submitted that “the appellant’s health issues were considered … and the Minister found that the appellant could return to the UK notwithstanding”.
121 Notwithstanding the Minister’s submissions to the contrary, we would infer from the Minister’s statement of reasons that he did not advert to or take into account the possibility that the appellant might be detained indefinitely if the appellant’s visa were cancelled. The statement of reasons was made in discharge of the obligation in s 501G(1) of the Migration Act, attracting the obligation in s 25D of the Acts Interpretation Act 1901 (Cth) to “set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based”. Although the Minister’s statement of reasons referred more than once to the appellant’s medical conditions and ill-health, including in the context of his future in the United Kingdom, it did not refer to the possibility that the appellant’s ill-health might prevent his actual return there and result in indefinite detention. We are unpersuaded by the submission that the Court should not infer from the Minister’s silence on the point that the Minister did not consider the possibility of indefinite detention. Rather, since the Minister set out no finding on the matter, we infer that the Minister did not consider it to be material: cf. Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, 206 CLR 323 at [5], [37], [69], [89] and [133].
122 We interpolate here that, for like reasons, we reject the Minister’s submission that he found that the appellant could return to the United Kingdom notwithstanding his health issues. There was no statement in terms that the Minister found that the appellant could return to the United Kingdom despite his ill-health and we can discern no reasonable basis for inferring that the Minister so found. As indicated in [121] above, although the Minister’s statement of reasons mentioned the appellant’s ill-health, it did not at any point address whether his ill-health might preclude the appellant’s removal to the United Kingdom. For the reasons outlined in [121], the proper inference from the Minister’s silence is that he did not consider the matter to be material.
123 The discretion under s 501(2) as to whether or not to cancel a visa (where paragraphs (a) and (b) are satisfied) is unconfined. The possibility that the appellant might suffer indefinite detention if his visa were cancelled is, however, a relevant consideration in our view, having regard to the subject-matter, scope and purpose of s 501 of the Migration Act: cf. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. In so concluding we have had regard to NBMZ 220 FCR 1 in which a Full Court of this Court held that, in making a decision under s 501(1), the Minister’s failure to consider that the visa applicant would face indefinite detention if a visa were refused constituted jurisdictional error.
124 In NBMZ 220 FCR 1, Allsop CJ and Katzmann J held that the visa applicant was entitled to have his application “determined on the hypothesis that he will be indefinitely detained” on the basis that the Minister was obliged in exercising power under s 501(1) to consider the legal consequence of the decision he proposed to make. In NBMZ 220 FCR 1 at [9], their Honours said:
The Minister must take into account the Act and its operation in making a decision; to make a decision without taking into account what Parliament has prescribed by way of legal consequence is to fail to take into account the legal framework of the decision. At a functional level this is reinforced if the legal consequences of the decision are important in human terms: indefinite detention pending removal.
125 Buchanan J expressed his reasons more broadly (at [178]), saying that in his view, “the prospect … of indefinite detention was not a matter which could be overlooked, disregarded or allowed to pass without comment in a proper determination of the application for a visa”.
126 These aspects of the reasons for judgment of Allsop CJ and Katzmann J, and of Buchanan J, apply with equal force to an exercise of power under s 501(2) of the Migration Act. In exercising power under s 501(2) the Minister was obliged to consider the legal consequence of any decision that he might make to cancel a visa, including the prospect of indefinite detention.
127 In NBNB v Minster for Immigration and Border Protection [2014] FCAFC 39, 220 FCR 44 Allsop CJ and Katzmann J (at [2]), and Buchanan J (at [107]-[112]) in a separate judgment, followed their reasons in NBMZ to reach the same conclusion in a number of cases that were heard together, in which the Minister again failed to take into account that the consequence of the challenged decisions was indefinite detention for each applicant.
128 Later, in Le v Minister for Immigration and Border Protection [2015] FCA 1018 at [34], Rangiah J applied these two Full Court decisions where, in different circumstances, the Minister’s decision to cancel a visa under s 501(2) gave rise to a prospect of indefinite detention in Australia. The material before the Minister indicated that a prospect of indefinite detention arose from the fact that the applicant in that case had apparently lost his nationality by reason of events in his national State.
129 The parties agreed that the prospect of the appellant’s indefinite detention in the present case was a possible practical, rather than legal, consequence, of the cancellation of his visa. The appellant argued that the consequence for him in the present case “stood in the same category as the ‘legal consequences’ of cancellation, as discussed in NBMZ and in Le”. The Minister submitted that it did not, because the consequence of indefinite detention “flowed from Australia’s obligation of non-refoulement and the terms of the Act”. Broadly speaking, we prefer the appellant’s submissions to the Minister’s, although it seems to us that the appellant mistakenly conceded that his prospect of indefinite detention was a foreshadowed practical, rather than a legal, consequence of his visa cancellation.
130 In NBMZ, the visa applicant faced indefinite detention following the Minister’s visa refusal decision under s 501(1) because of ss 189, 196 and 198 of the Migration Act and the fact that there was no other country that would take him, to which he could be removed consistently with Australia’s non-refoulement obligations under the 1951 Refugees Convention. This was significant because the visa applicant had been assessed as a refugee, to whom Australia owed protection obligations under the Convention.
131 In the present case, the possibility of indefinite detention arises again because of ss 189 and 196 (requiring, relevantly, that the appellant be kept in immigration detention until removed from Australia) and s 198 (requiring relevantly that a person whose visa has been cancelled under s 501 be removed from Australia “as soon as reasonably practicable”): see also s 193(1)(a)(iv). In this case, the appellant’s ill-health was the factual circumstance that signalled the possibility that removal might not be “reasonably practicable” for the purpose of s 198 because the appellant might be too ill to be deported to the United Kingdom.
132 The foreshadowed legal consequence (indefinite detention) was the same in this case as in NBMZ and arose from the same provisions of the Migration Act. The difference between this case and NBMZ lay in the nature of the foreshadowed facts that might prevent the appellant’s removal from Australia under s 198 and, by operation of ss 189, 196 and 198, result in his indefinite detention, a detention that would end only if his removal became reasonably practicable or his legal status altered (there being no indication that the latter was a possibility). As indicated in [123] above, NBMZ is authority for the proposition that, in exercising power under s 501(1) or (2), the Minister must take into account the legal consequences of a decision under the Migration Act. If indefinite detention is in prospect as a legal consequence of a proposed decision, the Minister must take this consideration into account. It is immaterial that the factual circumstances giving rise to that legal consequence are different.
133 There is also another difference between this case and NBMZ, but again it does not alter the Minister’s obligation to take into account that indefinite detention is in prospect as a legal consequence of his proposed decision. This difference lies in the fact that in NBMZ it was virtually certain on the facts of that case that, if the Minister refused to grant a visa under s 501(1), it would not be reasonably practicable to remove the visa applicant from Australia in the immediate future and that, by operation of the Act, he would be kept in detention for an indefinite time. In the present case, the material before the Minister did not show that it was virtually certain that it would not be reasonably practicable to remove the appellant if his visa were cancelled. Rather, this material indicated that there was a real possibility that the appellant’s removal would not be reasonably practicable on account of his ill-health and that, if this were the case, the appellant would face indefinite detention (by operation of ss 189, 196 and 198). Again, this difference did not affect the Minister’s obligation to take into account the legal consequences of his proposed decision (although it might affect his decision-making in other ways). The Minister was obliged in this case as in NBMZ to take into account that the material before him disclosed that the appellant’s indefinite detention was in prospect if he cancelled the appellant’s visa, as a consequence of ss 189, 196 and 198 of the Migration Act.
134 In this case, the Minister failed to take this relevant consideration into account. This failure amounts to a jurisdictional error, which might materially have affected the decision. Accordingly, we agree with the orders proposed by North J.
135 As the reasons of North J indicate, there are other troubling aspects of the Minister’s decision in this case. In view of the conclusion we have reached on ground 3, we would not explore these aspects further.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kenny and Perry. |
Dated: 14 April 2016
