FEDERAL COURT OF AUSTRALIA

BNVM v Minister for Immigration and Border Protection [2018] FCA 131

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant to pay the costs of the first respondent, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCKERRACHER J:

INTRODUCTION

1    This application is made in the original jurisdiction of the Federal Court of Australia under s 476A(1)(b) of the Migration Act 1958 (Cth).

2    It is an application for judicial review of a decision of the second respondent (the Tribunal), made on 5 May 2017. The Tribunal decision was the merits review, under s 500(1)(b) of the Migration Act, of a decision of a delegate of the first respondent (the Minister) on 1 March 2017, to refuse to grant to the applicant a Bridging E (Class WE) visa, pursuant to s 501(1) of the Migration Act.

3    The jurisdiction of the Court to judicially review the decision of the Tribunal, is the same as that of the High Court under s 75(v) of the Constitution: s 476A(2) of the Migration Act. Accordingly, the application can only succeed if the decision of the Tribunal involved jurisdictional error: WASB v Minister for Immigration and Citizenship (2013) 217 FCR 292 (at [13]).

FACTUAL BACKGROUND

4    The applicant is a 32 year old male citizen of Indian nationality. He arrived in Australia on 5 March 2009, as the holder of a Student (Temporary) (Class TU) visa. He has, since then, remained in Australia. He applied for and was granted three subsequent student visas, the last of which was valid until 22 May 2016.

5    On 30 December 2014, a combined application for a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) was lodged in the applicant’s name. The applicant and his then partner married on 4 December 2014, but had been in a relationship prior to that date. The applicant’s partner was the mother of the young girl the subject of the applicant’s sexual offence convictions discussed below.

6    The applicant’s partner applications were refused on 16 March 2015.

7    On 9 March 2016, his Student (Temporary) (Class TU) visa was cancelled under s 116(1)(g) of the Migration Act because the Department of Immigration and Border Protection determined that the applicant had, on that date, criminal convictions that included sexual offences against a minor.

8    On 20 May 2016, the applicant was detained pursuant to s 189 of the Migration Act. On 2 June 2016, the applicant lodged a Bridging E (Class WE) visa application, which was refused on 6 June 2016. On 17 June 2016, the Tribunal affirmed the Department’s decision relating to that bridging visa.

9    On 19 December 2016, the applicant applied for a Protection (Class XA) visa (protection visa). On 21 December 2016, the applicant applied for the Bridging E (Class WE) visa, the visa which is the subject of the proceedings before the Court, in conjunction with his protection visa application.

10    On 29 December 2016, the Department sent the applicant a ‘Notice of intention to consider refusal of your visa application under s 501(1) of the Migration Act 1958’.

11    On 13 February 2017, the Department sent the applicant a letter inviting him to comment on a National Police Certificate dated 24 January 2017. In a letter dated 2 March 2017, the applicant was notified of the decision of a delegate of the Minister, made on 1 March 2017, to refuse to grant the applicant’s visa under s 501(1) of the Migration Act. On 6 March 2017, the applicant’s application for the associated protection visa was also refused. On 9 March 2017, the applicant applied to the Tribunal for review of the decision to refuse his protection visa. The application to the Tribunal for review of the decision to refuse the visa was made on 13 March 2017 and was heard on 1 and 2 April 2017.

IN THE TRIBUNAL

12    As identified by the Tribunal at [18], the issues for consideration were:

(a)    whether the applicant passed the character test under the Migration Act; and

(b)    if not, whether the applicant’s visa should be refused, taking into account the relevant considerations in Ministerial Direction No 65.

13    The Tribunal set out the evidence before it (at [19]-[23]) and said it ‘has reviewed all of the material before it’.

14    At [24]-[30], the Tribunal considered whether the applicant passed the character test. The Tribunal, correctly, found that the applicant did not pass the character test in s 501(6) of the Migration Act as he had been convicted of a sexually based offence involving a minor.

15    The Tribunal then considered whether it ought to exercise its discretion to refuse the visa.

16    The Tribunal referred to the Direction, issued on 22 December 2014, pursuant to s 499(1) of the Migration Act. As the Tribunal noted (at [32]), the Direction was binding on all decision-makers, from that date.

17    The Tribunal set out the terms of the Direction and looked at the primary considerations of the protection of the Australian community from criminal or other serious conduct, the best interests of minor children and the expectations of the Australian community (at [38]).

18    The Tribunal then took into account ‘the nature and seriousness of the non-citizen’s conduct to date’, in accordance with [11.1.1] of the Direction.

19    The Tribunal found (at [48]) that the applicant’s criminal convictions in relation to the four assault charges against his former wife were dropped, as was the contravention of intervention charge in 2017.

20    The Tribunal (at [56]) noted that in considering the nature and seriousness of the applicant’s criminal offending, sexual offences and offences against a minor were viewed seriously.

21    The applicant’s criminal record included convictions for sexual crimes against a minor. As noted (at [57]), the child in question was the daughter of his partner and was 16 at the time the sexual offence was committed.

22    The Tribunal noted that sentences involving terms of imprisonment are the last resort in the sentencing hierarchy, especially where an offender has no significant prior criminal history. The Tribunal found (at [58]) that the term of the applicant’s imprisonment reflected the seriousness of the sexual offence involved.

23    The Tribunal found (at [59]) that the applicant’s crimes were serious and of considerable concern. In the circumstances of the matter, the Tribunal considered that the sexual offences committed by the applicant weighed heavily in favour of refusing the applicant’s visa. The Tribunal also found the applicant’s conduct reflected a degree of recklessness towards a minor in his care that could not be excused.

24    The Tribunal then took into account ‘the risk to the Australian community should further offences be committed’ in accordance with [11.1.2] of the Direction.

25    The Tribunal had grave concerns about the applicant’s conduct in relation to his sexual convictions and his character more generally as the applicant was found guilty of engaging on four occasions with a girl aged 16 who was in his care at the time. The applicant’s partner (whom he subsequently married) was the child’s mother. The Tribunal found (at [71]) that the offending was essentially incestuous in nature and a gross breach of trust, reflecting poorly on the applicant’s moral qualities.

26    The Tribunal found (at [72]) that the applicant demonstrated a failure to respect the laws of Australia and a complete failure to understand that what he did was wrong. The Tribunal considered that this lack of judgment and self-reflection raised serious concerns about the chances of the applicant reoffending in the same manner.

27    The Tribunal considered (at [74]) that the applicant’s risk of reoffending was completely unacceptable in the circumstances of his case and that any risk of the applicant reoffending was unacceptable given the seriousness of his criminal sexual conduct against a minor and the harm that would result from any re-occurrence of such conduct. The Tribunal found that the applicant’s behaviour raised serious issues about the extent to which he posed an unacceptable risk to the Australian community and that weighed heavily in favour of refusing the applicant’s protection visa.

28    In considering what was in the ‘best interests of minor children in Australia’, in accordance with [11.2] of the Direction, the Tribunal noted that no evidence was before the Tribunal that any children will be adversely affected by any decision to refuse the visa. As such, the Tribunal concluded (at [77]) that this was not an issue.

29    The Tribunal then took into account the ‘expectations of the Australian community’ in accordance with [11.3] of the Direction. The Tribunal found (at [81]) that the expectations of the Australian community are that a non-citizen who has engaged in a serious crime of a sexual nature against a 16 year old girl (who eventually became his step-daughter) and a non-citizen who has shown no true appreciation for the wrong committed or provided any evidence to demonstrate that it will not happen again, should expect to be denied the right to stay in Australia.

30    The Tribunal then took into account ‘other considerations’ in accordance with [12] of the Direction. At [90] the Tribunal considered Australia’s non-refoulement obligations to the applicant in accordance with [12.1] of the Direction. The Tribunal held that if any such obligations existed, they could be validly met through the protection visa process or through an exercise of powers under s 195A and that, in this case, the applicant’s protection visa application had yet to be decided.

31    The Tribunal then took into account ‘the impact on victims’ in accordance with [12.3] of the Direction. The Tribunal (at [93]) found that the minor had ended her relationship with the applicant and had no intention of interacting with him in the future. There was no evidence before the Tribunal that she would be impacted in a negative way should the applicant’s visa be granted.

32    The Tribunal found (at [95]) that, having been convicted of a sexual offence against a minor, the applicant did not pass the character test in s 501(6) of the Migration Act and that was not in dispute.

33    Ultimately, the Tribunal concluded:

99.    The Tribunal also finds that there remains an unacceptable risk that [the applicant] may engage in further criminal conduct if he remains in Australia and that the Australian community will, as a consequence, be at risk. In making this assessment the Tribunal has considered the nature of harm to individuals or the Australian community should [the applicant] engage in further criminal or other serious conduct and the likelihood of further criminal or other serious conduct, taking into account information and evidence in relation to the risk of [the applicant] reoffending. [The applicant] has taken few if any positive steps towards rehabilitation for his sexual misconduct and shows little appreciation of the seriousness of his sexual misconduct. In the circumstances, the Tribunal believes that there is an ongoing risk of reoffending and, as such, an unacceptable risk to the safety of the Australian community.

100.    Given the nature of the sexual crime committed, the Tribunal is also of the view that the Australian community would expect that [the applicant's] visa would remain cancelled.

101.    In relation to any considerations that weigh in favour of [the applicant], the Tribunal notes that there is no evidence that the victim of his sexual misconduct will suffer if he is granted a visa. To the extent that this can be seen as countervailing consideration, it does not, on balance, outweigh the primary considerations referred above, which should generally be given more weight.

IN THIS COURT

34    The applicant commenced proceedings by filing an application for extension of time on 27 June 2017. The application did not set out any proposed relief. It was accompanied by an affidavit that simply annexed the decision of the Tribunal and a statement by the applicant as follows:

1.    I [the applicant] of Christmas Island Immigration Detention Centre tender the following statement, with respect of my application for an extension of time:

1.    I have experienced delays in the provision of legal advice, and see relief to seek out same.

2.    Acting under incorrect advice from Legal Aid, I submitted documentation erroneously to the Federal Circuit Court.

3.    I have limited access to computer and facsimile facilities, and Justice of the Peace, who only visits on a one weekly basis.

4.    I am presently undertaking preparations for Tribunal hearing proceedings in the matter of the issuance of a Protection Visa, without benefit of legal representation.

Draft notice of appeal

35    A separate draft notice of appeal was also lodged on 27 June 2017 with the following ‘grounds’ of appeal:

The Applicant appeals from the decision of Administrative Appeals Tribunal given on 5/5/2017 at Perth.

The Tribunal decided to affirm the decision of the second respondent.

The Applicant appeals from Conclusion paragraphs 97 onward.

Questions of law

1.    Relevant and mitigating factors were not taken into consideration; namely

•    The fact that a Victim Impact Statement was not deemed necessary or relevant by the victim, given the consensual nature of the relationship.

•    My demonstrated prior history of lawfulness and respect for authority in both India and Australia.

•    My positive pro-social attitude as a contributing member to society in both India and Australia.

•    My pro-active engagement in group and interpersonal counselling since the offending; contributing to my rehabilitation and further personal development.

•    The light sentence imposed by the sentencing judge, in light of my past history of lawfulness.

Findings of fact that the Court is asked to make

1.    My risk of recidivism and re-offending is negligible, and certainly below the threshold of acceptability.

2.    Whilst the offence for which I was convicted is deemed serious in nature, there are mitigating factors which must be weighed against the gravity of the charge.

3.    I am deeply aware of the serious nature of the offending, and have taken positive and proactive steps to address my misconduct in order to minimise the future risk of harm to individuals and the community at large.

4.    I submit that I am prepared to engage in any such bond or contract deemed appropriate as surety for the claims made above.

5.    In light of the above, and given my positive contribution to the community, a denial of visa would not be the expectation of the Australian community, and would not be consistent with the circumstances of my offending actions.

Orders sought

1.    An order that the Decision on the issuance of a Bridging Visa by the Administrative Appeals Tribunal be quashed.

2.    A writ of mandamus directed to the Minister and requiring him to determine my application for a Bridging Visa according to law.

3.    An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the Decision of the Administrative Appeals Tribunal, and from removing me from Australia.

4.    An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from making future decisions or taking the other action and subject of the proceedings.

5.    An extension of time is granted for the purpose of seeking legal representation.

6.    Leave granted to allow submission of amended application and Affidavit.

Grounds relied on

1.    Relevant factors were not taken into consideration; namely past history of lawfulness, no previous criminal history, demonstrated contribution to the Australian community.

2.    In rendering their decision, the Tribunal did not take into consideration my subsequent pro-active participation in counselling and personal development courses to facilitate my rehabilitation and further personal development.

Applicant’s submissions

36    The applicant also faxed an outline of submissions to the Minister’s solicitors in the evening of 15 November 2017, but did not provide these submissions to the Court. Those submissions are as follows:

I [the applicant], currently detained at Christmas Island Immigration Detention Centre, provide the following statement in support of my request for review of the decision to deny the issuance of a Bridging Visa.

In addressing character concern I discussed my remorse and my recognition of serious nature of charges I was convicted of without lessening the gravity of those charges, I explained that there were mitigating circumstances which were reflected in the relatively light sentence less than 12 months which I received. The Tribunal failed to take into account the mitigating circumstances which led to my offending behaviour […]. I acted with some degree of naivety as the charges related to sexual contact with consenting partner who was 16 and half years old at that time. I understand the legal age is 17 years of age in South Australia; not 16 as in the majority of Australian states.

The Tribunal did not consider my history and character up to the time of the offence. Of my criminal history, I can state that I have had no prior criminal convictions here or in India, and I have led a substantially law-abiding life.

The Tribunal gave no weight to the fact that I have actively attended rehabilitation programs whilst held in immigration detention. Although I was not assessed as requiring to undertake any mandatory rehabilitation programs, I have nevertheless endeavoured to improve myself by participating in voluntary personal and character development programs with IHMS counselling staff. I provide certificates of completion confirming my participation, as an attachment to this statement.

I will also be providing The Federal Court a copy of my mental health's record as soon as I get served with it by IHMS.

I have been attending these groups counselling sessions for last or past seven months. In addition I have also been attending 1 on 1 counselling with the resident counsellor […] for rehabilitation. She is a well-qualified and experienced counsellor. I supply letters of confirmation from IHMS counsellor […] and the resident psychologist to support my claim. I remain devoted to attending these programs and I continue to do so at the time of writing.

The Tribunal failed to recognise that one of the rehabilitation programs named "Why Do I Re-Offend" into consideration. This rehabilitation program addresses sexual offending and also assault.

These programs have been of great benefit to me personally, and I contend that they support my own personal commitment to continue being a worthy and respectful member of the Australian community.

A pre-sentencing report was not provided to The District Court of South Australia, and I was not given the opportunity to discuss the state of my mental and physical health.

The Tribunal did not take my mental health into consideration; I suffer chronic depression which has become worse over the past years. Due to my depression, I have been suffering related physical ailments including a stomach ulcer, and have been taking medication for that as well as insomnia.

The Tribunal also failed to take into consideration my Cousin’[s] statement […]. In the Statutory Declaration he provided, he stated his preparedness to provide a security bond on my behalf, as a further assurance of my commitment to good behaviour and lawfulness upon my release to the community.

37    Attached to the applicant’s submissions was correspondence from staff at the International Health and Medical Services (IHMS) and completion certificates which indicate that the applicant has been participating in a range of programs focussing on addiction, re-offending and anger management, as well as associated counselling sessions.

38    In the course of the hearing in this Court the applicant stressed that he had no criminal history in India and revisited in detail the circumstances of his offence and conviction in Australia, his remorse, rehabilitation and mitigating factors said not to have been considered by the Tribunal.

39    The Minister indicated that he had no objection to the granting of the extension of time. The Minister’s submissions go to the appeal proper.

CONSIDERATION

40    The applicant’s two draft grounds would be, in substance:

(1)    Relevant factors were not taken into consideration; namely past history of lawfulness, no previous criminal history and a demonstrated contribution to the Australian community.

(2)    In rendering its decision, the Tribunal did not take into consideration the applicant’s subsequent pro-active participation in counselling and personal development courses to facilitate rehabilitation and further personal development.

41    The applicant’s submissions (set out at [36]), effectively contends that:

(a)    The Tribunal failed to take into account the mitigating circumstances which led to the applicant’s offending behaviour.

(b)    The Tribunal did not consider the applicant’s history and character up to the time of the offence.

(c)    The Tribunal gave no weight to the fact that the applicant actively attended rehabilitation programs whilst held in immigration detention. Particularly, the Tribunal failed to take into consideration one of the rehabilitation programs named ‘Why Do I Re-Offend’. This rehabilitation program, the applicant submits, addresses sexual offending and also assault.

(d)    A pre-sentencing report was not provided to the District Court of South Australia, and the applicant was not given the opportunity to discuss the state of his mental and physical health.

(e)    The Tribunal did not take the applicant’s mental health into consideration.

42    The ground of judicial review concerning a failure to have regard to relevant considerations requires demonstration that a consideration was one that the decision-maker was bound to take into account in making a decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J (at 39-42).

43    In accordance with the Direction, the Tribunal was required to consider the following primary considerations:

(a)    protection of the Australian community from criminal or other serious conduct. This consideration required the Tribunal to consider:

(i)    the nature and seriousness of the applicant’s conduct to date; and

(ii)    the risk to the Australian community should the applicant commit further offences or engage in other serious conduct;

(b)    the best interests of minor children in Australia; and

(c)    expectations of the Australian community.

44    Where relevant, the Tribunal was further required to consider:

(a)    international non-refoulement obligations;

(b)    impact on family members;

(c)    impact on victims; and

(d)    impact on Australian business interests.

45    The Tribunal was not required to consider the mitigating factors for the applicant’s offending when considering any of the primary or other considerations set out in the Direction. Rather, the Tribunal was required to consider the factors set out above. The Tribunal did so by considering the mandatory considerations, informed by the sentencing remarks, the applicant’s written statement, the applicant’s oral evidence and the oral evidence of the applicant’s former partner (and victim) who the Tribunal found (at [52]) to be ‘entirely credible’.

46    What are said to be mitigating circumstances appear to be the applicant’s continued attribution of blame towards his ex-wife for his offending and his relationship with the minor at the time of the offending. As is apparent from the Tribunal’s reasons (at [63]-[64] and [72]), those circumstances were, in fact, taken into account but not in a manner which was favourable to the applicant. The Tribunal’s findings in this regard were clearly open on the evidence.

47    The significant issue for the Tribunal was whether the applicant presented a risk to the Australian community. His history was considered in that context. Further, and contrary to the applicant’s submission, the Tribunal did have regard to the evidence provided to it of rehabilitation courses as well as his attendance at church (at [69]). However, the Tribunal also noted that there was no unequivocal evidence from an independent and authoritative source to indicate that the applicant had undergone rehabilitation for sexual offences (at [73]). This was a finding which was open on the evidence before the Tribunal. The only evidence of completion of courses before the Tribunal was a first aid course and attendance at a substance abuse/anger violence program (at [69]). The submissions filed by the applicant in his application attach a number of completion certificates which were not before the Tribunal and, indeed, post-date the Tribunal’s decision such that they could not have been before the Tribunal and could not fall for consideration.

48    There is no basis to the applicant’s complaint that the Tribunal did not recognise that the ‘Why Do I Re-Offend?’ program addressed sexual offending. There is nothing before the Court to indicate that this course addressed sexual offending, or that the applicant gave evidence that it addressed sexual offending. On its face, the course clearly addresses substance abuse/addiction and anger/violence. There is nothing to suggest that the Tribunal’s finding (at [73]) was not open to the Tribunal on the evidence before it.

49    Whatever suggested deficiencies occurred in the District Court, as to which there is neither particularisation nor evidence, it cannot ground jurisdictional error on the part of the Tribunal. There is no basis to the applicant’s complaint that he did not have an opportunity to discuss his physical and mental health. He was given an opportunity to file any evidence he wished to rely upon and attended an oral hearing where he had an opportunity to say anything he wished to.

50    As this was a visa refusal decision, there was no requirement for the Tribunal to consider the applicant’s physical and mental health. This can be contrasted with visa cancellation decisions or decisions not to revoke visa cancellation decisions which require the Tribunal to consider the extent of any impediments to the applicant if removed: see [10.5] and [14.5] of the Direction. In any event, the extent of the applicant’s evidence on this topic is that in detention he ‘battle[s] with depression and stress’.

51    Having regard to the entirety of the applicant’s grounds as elaborated on in his submissions, written and oral, the applicant is simply seeking to invite the Court into impermissible merits review.

BCR16 v Minister for Immigration and Border Protection

52    Whilst it was not raised as a ground, the Minister drew attention to the decision of BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456, where Bromberg and Mortimer JJ, delivering the majority decision of the Full Court, held that the Assistant Minister had erred in finding that it was unnecessary to determine whether non-refoulement obligations were owed to the appellant because the appellant was not prevented from making an application for a protection visa (applying [14.4] of the Direction). In that case, the appellant had advanced as a reason for revocation that he would be harmed upon return to his country of origin. The majority held that the Assistant Minister failed to carry out the task required by s 501CA(4) of the Migration Act in relation to the reasons for revocation (and in particular, the reason relating to the claimed risk of harm in the country of origin) that were included in the appellant’s representations submitted pursuant to s 501CA(3)(b) of the Migration Act. The majority held that the Assistant Minister’s reasoning in declining to consider whether there was a real possibility of significant harm befalling the appellant in his country of origin constituted a jurisdictional error.

53    This matter is distinguishable from BCR16 as:

(a)    First, the question of the applicant applying for a protection visa was not a matter of speculation. The applicant had applied for a protection visa. That protection visa application had been refused by a delegate on the basis that the delegate was not satisfied that protection obligations were owed to the applicant and the applicant had applied for (separate) merits review in the migration division of the Tribunal.

(b)    Secondly, the Tribunal specifically noted that there was ‘little evidence before the Tribunal that Australia owes any obligations in this regard to [the applicant] and no evidence to suggest he cannot be returned to India due, for example, to health or any other legitimate concerns’ (at [87]). In fact, as the applicant had been refused a protection visa the evidence before the Tribunal suggested that non-refoulement obligations were not owed.

54    For these reasons the decision of the Tribunal is not affected by the same error as identified in BCR16.

Constitutional validity of s 501(3A) of the Migration Act

55    Delivery of this judgment was postponed until the determination of an application by Mr Falzon in the High Court of Australia in which he asserted that s 501(3A) of the Migration Act is invalid because it purports to confer the judicial power of the Commonwealth on the Minister, in a manner contrary to Ch III of the Constitution. The application was filed in the High Court on 14 February 2017. That argument has now been rejected and is unavailable to the applicant, even if he had also relied upon it: Falzon v Minister for Immigration and Border Protection [2018] HCA 2.

CONCLUSION

56    The application must be dismissed with costs.

Associate:

Dated:    22 February 2018