FEDERAL COURT OF AUSTRALIA

Hooton v Minister for Home Affairs [2018] FCAFC 142

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    Subject to order 3, the appellant pay the costs of the respondent, as agreed or assessed.

3.    The respondent bear his own costs of his application to extend time to file the notice of contention and of the notice of contention.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The appellant, Mr Hooton, appeals from orders 1 and 2 made by a judge of this Court (the primary judge) on 8 March 2018. Those orders were that the application be dismissed and the applicant pay the respondent’s costs.

2    The proceedings, a judicial review application, were first heard by the primary judge on 17 March 2017 and an interlocutory judgment was given on 29 May 2017, but the matter was not finally determined pending the decision of the High Court in Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 351 ALR 61 on 7 February 2018.

3    There is a single ground of appeal which is that the primary judge erred in holding that the provisions of the Community Protection (Offender Reporting) Act 2004 (WA) was not a mandatory relevant consideration for the Minister for Immigration and Border Protection (the Minister) acting personally in deciding whether Mr Hooton’s visa should be revoked in accordance with the terms of s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). The ground, including its particulars, is set out in full at [26] below.

4    There is also a proposed notice of contention in respect of which the Minister seeks an extension of time. This was opposed.

The statutory provision

5    The relevant provision of the Migration Act is in the following terms:

501CA    Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)    …

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

…

The Minister’s decision

6    The background to the administrative decision-making is to be found in the Minister’s decision dated 22 July 2016.

7    The Minister decided not to revoke the original decision to cancel Mr Hooton’s Class TY Subclass 444 Special Category (Temporary) visa, made on 27 January 2015. The Minister said that he was not satisfied, for the purposes of s 501CA(4)(b)(ii), that there was another reason why the original decision to cancel Mr Hooton’s visa should be revoked.

8    Mr Hooton did not dispute the information in the National Police Certificate dated 2 February 2016 indicating that he was convicted in the District Court of Western Australia of using a carriage service to access child pornography material and possessing child exploitation material, for which he was sentenced on each charge to concurrent terms of 20 months imprisonment. The Minister noted that Mr Hooton was convicted of only one count of the offence of using a carriage service to access child pornography, not two as appeared in the National Police Certificate.

9    There was no dispute that Mr Hooton did not pass the character test with the result that s 501CA(4)(b)(i) was not satisfied.

10    Mr Hooton’s representations as to why the original decision should be revoked included that he had addressed his offending behaviour through programs; his prison conduct was very good; a psychologist judged him unlikely to re-offend or to progress to offences against children; most of his family was in Australia; he had no family in, or reasons to return to, New Zealand; and his mother had a serious illness which required him to care for her.

11    The Minister considered the best interests of minor children; the child being a niece of Mr Hooton. The Minister concluded that it was in that child’s best interests for the visa cancellation decision to be revoked, although the Minister noted that Mr Hooton was not responsible for her daily care and control.

12    The Minister next considered the strength, nature and duration of Mr Hooton’s ties to Australia. He first arrived as a 15 year old child and has remained in Australia from the age of 17 years. At the time of the Minister’s decision he had resided in Australia for more than 18 years.

13    The Minister next considered the extent of impediments that Mr Hooton would face if removed from Australia to his home country of New Zealand in establishing himself and maintaining basic living standards.

14    The Minister next had regard to the consideration of the protection of the Australian community, noting in particular Mr Hooton’s submission that he had been found unlikely to re-offend.

15    The Minister noted that Mr Hooton acknowledged that he was convicted of a serious offence. Having regard to Mr Hooton’s representations and the remarks and the sentence of the District Court, the Minister formed the view that Mr Hooton’s criminal offending was very serious.

16    The Minister then went on to consider the risk to the Australian community. The Minister had regard to the District Court judge’s remarks that the psychological factors in Mr Hooton’s case went some way to providing an explanation for his conduct, contributed to his “addiction” to this material and were “necessarily mitigatory”.

17    The Minister referred to the evidence that Mr Hooton had undertaken a medium intensity cognitive skills program for sex offenders which the Minister considered would reduce the likelihood of him re-offending. However, the Minister said, there was no evidence before the Department that Mr Hooton completed another program of rehabilitation for sex offenders, which was recommended that he undertake but which was not available to him during his imprisonment.

18    At [42], the Minister said that Mr Hooton was classified as a minimum-security prisoner and was released to parole approximately two months after serving his minimum, non-parole period. He was no longer subject to parole.

19    The Minister said, at [46]:

Mr HOOTON advised Ms Sampson that he was adamant he would never progress to contact offences with children, an assertion which she found no reason to doubt. His Honour also stated that it appears Mr HOOTON is unlikely to reoffend and I have placed considerable weight on these assessments. However, Mr HOOTON’s rehabilitation is untested in the community, where he will not be subject to the supervision of the parole service.

(Underlining added.)

20    At [49], the Minister said that having regard to all of the information before him, he formed the view that the likelihood of Mr Hooton re-offending was low.

21    Having referred to matters weighing in favour of the revocation of the mandatory visa cancellation decision the Minister concluded as follows:

55. On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crimes committed by Mr HOOTON, involving the accessing and possession of child exploitation material/child pornography, which are sexually based offences committed against children. I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia.

56. Further, I find that the Australian community could be exposed to unacceptable harm should Mr Hooton reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr HOOTON.

57. I am cognisant that where unacceptable harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the decision to cancel the visa, even applying a higher tolerance of criminal conduct by Mr HOOTON, than I otherwise would, because he has lived in Australia for over half of his life, including a portion of his formative years.

58. In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr HOOTON represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his minor niece, as a primary consideration, and any other considerations as described above. These include his lengthy residence, his familial, social and employment ties to Australia, and the hardship Mr HOOTON, his family and social networks will endure in the event the original decision is not revoked.

(Underlining added.)

The proceedings before the primary judge

22    The grounds of judicial review before the primary judge were as follows:

The Respondent Minister fell into jurisdictional error by failing to have regard to a relevant consideration when, in assessing the Risk to the Australian Community, and finding that in the community the Applicant would not be subject to the supervision of the parole service, he failed also to take into account that:

1.    It was inevitable that, under the provisions of the Community Protection (Offender Reporting) Act 2004 (W.A.) [“the Act”], the Applicant’s name would be placed on a Child Sex Offender Register, as occurred on before 15 June 2015, and that as a consequence that:

1.1.    His name would remain on the Register for 15 years from 15 June 2015.

1.2.     He would be subject to the reporting provisions of the Act for 15 years.

1.3.     Any further offence would be readily detected.

1.4.     His internet use would be readily monitored over that period, as he would be required to provide police with:

1.4.1.     details of any Internet service providers he used; and

1.4.2.     his usernames; and

1.4.3.     his passwords other than for bank accounts;

1.5.     His movements, within Australia, and overseas, would be controlled by police for 15 years;

1.6.     Breaches of the Act could attract severe penalties including imprisonment for up to five years;

1.7.     Access to all such prohibited material may be readily prevented by authorities in the foreseeable near future.

23    Section 24 of the Community Protection (Offender Reporting) Act required Mr Hooton to report his personal details to the Commissioner of Police within seven days after he ceased to be in government custody. Section 26 provided:

26.    Initial report by reportable offender of personal details

(1)    The details the reportable offender must report are —

(a)    his or her name, together with any other name by which he or she is, or has previously been, known; and

(b)    in respect of each name other than his or her current name, the period during which he or she was known by that other name; and

(c)    his or her date of birth; and

(daa)    details of any passport that he or she holds, including its number and expiry date and the name of the country that issued it; and

(d)    the address of each of the premises at which he or she generally resides or, if he or she does not generally reside at any particular premises, the name of each of the localities in which he or she can generally be found; and

(da)    any telephone number that he or she has or that he or she regularly uses; and

(db)    any email address that he or she has or that he or she regularly uses; and

(dc)    the name of any Internet service provider whose Internet carriage service —

(i)    he or she is supplied with; or

(ii)    he or she regularly uses;

and

(dd)    any name (other than a name reported under paragraph (a)) that he or she uses, or by which he or she is known, when using the internet for the purposes of communication; and

(de)    any —

(i)    website; or

(ii)     communication service provided by means of the internet,

in connection with which he or she uses a name referred to in paragraph (a) or (dd) or an email address referred to in paragraph (db); and

(df)    any user name, code, password or other information that he or she uses to gain access to —

(i)    the internet generally or a particular website, other than a website operated by an authorised deposit-taking institution, as defined in the Banking Act 1959 (Commonwealth), or a website approved by the Commissioner under subsection (1b); or

(ii)    an email address referred to in paragraph (db) or a communication service referred to in paragraph (de);

and

(e)    the names and ages of any children who generally reside in the same household as that in which he or she generally resides, or with whom he or she has regular unsupervised contact; and

(fa)    the address of each of the premises at which —

(i)    he or she is regularly present; and

(ii)    any children generally reside;

and

(f)    if he or she is employed —

(i)    the nature of his or her employment; and

(ii)    the name of his or her employer (if any); and

(iii)    the address of each of the premises at which he or she is generally employed or, if he or she is not generally employed at any particular premises, the name of each of the localities in which he or she is generally employed;

and

(g)    details of his or her affiliation with any club or organisation that has members who are children or that conducts activities in which children participate; and

(h)    the make, model, colour and registration number of any motor vehicle owned by, or generally driven by, him or her; and

(i)    details of any tattoos or permanent distinguishing marks that he or she has (including details of any tattoo or mark that has been removed); and

(j)    whether he or she has ever been found guilty in any foreign jurisdiction of a reportable offence or of an offence that required him or her to report to a corresponding registrar or been subject to a corresponding offender reporting order or a corresponding protection order recognised under section 108 and, if so, where that finding occurred or that order was made; and

(k)    if he or she has been in government custody since he or she was sentenced or released from government custody (as the case may be) in respect of a reportable offence or corresponding reportable offence — details of when and where that government custody occurred; and

(l)    if, at the time of making a report under this Division, he or she leaves, or intends to leave, Western Australia to travel elsewhere in Australia on an average of at least once a month (irrespective of the length of any such absence) —

(i)    in general terms, the reason for travelling; and

(ii)    in general terms, the frequency and destinations of the travel.

…

24    The primary judge held that the Community Protection (Offender Reporting) Act provisions were not a mandatory consideration the Minister was bound to take into account in his decision-making. It was therefore not necessary to address the further question whether the Minister had judicial notice of the State Act and/or the notice issued under it. The primary judge also held that the finding of no jurisdictional error assumed that the Minister would not be ignorant of State and Territory based legislation like the Community Protection (Offender Reporting) Act.

25    The primary judge said as follows:

61    While the Act is something that, quite plainly, might be regarded by the Minister, and there may even be a case for suggesting that in the pursuit of good public administration the Minister would take State and Territory based legislation of this kind into account when exercising the discretion, none of that, in my view, makes the terms of the State Act in this case a mandatory relevant consideration the Minister was bound to take into account.

62    Indeed, the applicant, in his submissions, recognised this difficulty by propounding the terms of the State Act as an “ancillary” relevant consideration. It is at that point of his submission that the mandatory consideration argument begins to fall down. The applicant constructs an approach to decision making which, if adopted, would mean that the Minister needed to have regard to the State Act. The difficulty with that approach is that there may be more than one way for a Minister to approach decision making in this area. While the applicant says any “rational” decision making process should proceed in the manner he proposed, I am not satisfied that there was anything irrational about the particular decision making approach that the Minister in fact adopted.

63    In this case, indeed, the applicant does not proceed on the basis that the Minister’s decision was irrational or lacked an evident and intelligible basis, and so, in terms of Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 was a legally unreasonable decision. Plainly, it was not irrational in those terms.

64    As a result, I am not satisfied that the Minister’s failure to take into account the State Act and/or the notice indicated a decision making process that involved jurisdictional error.

65    It is therefore not necessary to address the further question whether the Minister had judicial notice of the State Act and/or the notice issued under it. The finding of no jurisdictional error I have just made assumes that the Minister would not be ignorant of State and Territory based legislation like the State Act.

66    In a federal system like Australia’s, it may be accepted, in my view, that the Minister would have knowledge of relevant State and Territory based legislation requiring sex offenders to report to the authorities.

67    But, as I say, it is not necessary finally to decide that question because, even assuming such awareness, no jurisdictional error is demonstrated by the Minister’s failure to advert to such reporting obligations in the decision affecting the applicant in this case.

The ground of appeal

26    The ground of appeal, with particulars, was in the following terms:

1.    His Honour erred when he held that the provisions of the Community Protection (Offender Reporting) Act 2004 (WA) [‘the Community Protection Act’], not being mandatory, were not a relevant consideration that the respondent was required to take into account, when considering whether he should revoke the appellant's visa in accordance with the terms of section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

Particulars

2.    Section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) imposes no statutory mandatory considerations, leaving the Minister free to determine such considerations as he considers to be relevant.

3.    In the present case, the Minister considered relevant the risk to the Australian community if the cancellation of the appellant’s visa were to be revoked, and his visa returned to him.

4.    In assessing that risk the Minister identified as a relevant (sic) supervision of the appellant after his release from prison.

5.    He took into account that the appellant would not be subject to the control and supervision of the probation service.

6.    He failed to take into account that he would be under more extensive control under the Community Protection Act, of which his Honour held that he had notice.

7.    Having identified control and supervision of the appellant in the community as a relevant consideration, control measures to which the appellant would be subject under the Community Protection Act became relevant to the Minister’s consideration under section 501CA(4)(b)(ii), and he was required to take these into account.

8.    His failure to do so caused the exercise of his discretion to miscarry, and the Minister to fall into jurisdictional error.

9.    His Honour erred in failing so to find.

The parties’ submissions

27    Counsel for Mr Hooton submitted as follows.

28    The Minister properly considered “Risk to the Australian Community” to be a relevant consideration. He then considered supervision of Mr Hooton in the community following his release from prison to be relevant to that. Supervision was a consideration ancillary to the assessment of risk to the community. Then in considering the supervision to which Mr Hooton would be subject in the community, the Minister took into account that he would not be subject to the supervisory control of the probation service since his term of probation had already expired. He considered the absence of supervision by the probation service as relevant to an assessment of the risk Mr Hooton posed if unsupervised. Since supervision in the community was accepted by the Minister as being relevant to the assessment of risk, it was in that context that, before the primary judge, it was submitted for Mr Hooton that: “The provisions of the Act were an ancillary relevant consideration in ensuring the protection of the Australian community that the Minister properly viewed as a primary consideration in the exercise of the discretion conferred upon him …”.

29    Having identified supervision of Mr Hooton in the community as a relevant consideration, and the absence of supervision by the probation service as increasing the risk, both a rational approach to the exercise of his discretion, and an approach that was procedurally fair to Mr Hooton, required that the Minister take into consideration material at his disposal that could be seen as decreasing the risk. The restrictions imposed upon Mr Hooton as a reportable offender under the Community Protection (Offender Reporting) Act, extending as they did far beyond and being more intrusive than supervision by the probation service, could be seen as decreasing the risk. As part of the Minister’s assessment of risk, they became a mandatory consideration, and caused him to fall into jurisdictional error. The primary judge erred in failing to identify the jurisdictional error on the part of the Minister, and Mr Hooton was entitled to the relief he sought.

30    In oral submissions, counsel for Mr Hooton contended that the provisions of s 26 of the Community Protection (Offender Reporting) Act were “very intrusive indeed, and they are far more supervisory than anything that the probation service would have provided, and they also, unlike the parole period, run for 15 years.”

31    Counsel for Mr Hooton also submitted that although he had described the error as a failure to take into account a mandatory relevant consideration, the error could be described in a number of other ways. It could also be said that it was legally unreasonable on the part of the Minister not to take into consideration those supervisory conditions of the Community Protection (Offender Reporting) Act that would extend for a much longer period. The Minister did, in fact, conduct a risk assessment, and Mr Hooton’s complaint was about the way that risk assessment was conducted.

32    Even if a consideration was not mandatory, the submission went, if the Minister adopted a consideration as relevant he had to do it properly and it was legally unreasonable to ignore the Community Protection (Offender Reporting) Act once the Minister had taken into account the fact that supervision was relevant to the question of risk. The Minister took into consideration the fact that Mr Hooton would not be subject to the probation service, which increased the risk. But the Minister did not take into consideration that Mr Hooton would be subject to the Community Protection (Offender Reporting) Act, which decreased the risk. Counsel for Mr Hooton said he did not rely on legal unreasonableness as a separate ground of appeal. Neither did he rely on a denial of procedural fairness.

33    Counsel for Mr Hooton also submitted that the Minister was, as the primary judge held, fixed with notice of the fact that Mr Hooton would be subject to the provisions of the Community Protection (Offender Reporting) Act from the date of his conviction. Further, counsel for Mr Hooton submitted, ignorance of the law was no excuse, both in civil matters and criminal matters. When a Minister, as part of his portfolio, had a responsibility of removing sex offenders from the jurisdiction, then the Minister could not say, “Well, I wasn’t aware of and I… can rely on the fact that I didn’t know of this relevant provision, which was relevant to… one of my decisions in making the risk; in other words, the degree of supervision after release”.

34    Counsel for the Minister submitted that none of Mr Hooton’s submissions to the Department referred to the Community Protection (Offender Reporting) Act or to the Community Protection Notice.

35    The Community Protection (Offender Reporting) Act and the Community Protection Notice were pieces of evidence rather than mandatory considerations, he submitted.

36    The Minister submitted that what, if any, factors a decision-maker was bound to take into account, was a question of construction of the statute. A court would not find that a decision-maker was bound to take a particular matter into account unless an implication that she/he was bound to do so was found in the subject-matter, scope and purpose of the statute. The Minister referred to Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; 230 FCR 367 at [41].

37    The Minister submitted that the issue of relevant considerations had to be tested in the proper statutory context and against the material elements under consideration rather than allowing the investigation to be unduly distracted by the factual issues which a party may wish to emphasise in support of her/his own case. The Minister referred to SZCOQ v Minister for Immigration and Multicultural Affairs [2007] FCAFC 9 at [56] - [59] per Buchanan J (albeit in dissent as to the result).

38    Just because a matter might have been of potential relevance to the decision-making process did not mean that the Minister was obliged to have regard to it. The Minister referred to Roesner v Minister for Immigration and Border Protection [2015] FCA 68 at [35] (appeal dismissed: Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132).

39    The Minister submitted that Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 was concerned with a consideration of what decision-makers were bound to take account by the terms of the statute in issue and provided no sound basis for considering questions of jurisdictional error in the making of decisions under the broadly framed decision-making powers in the Migration Act. See Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [99]; ACE15 v Minister for Immigration and Border Protection [2017] FCA 1054 at [23].

40    Merely to ignore relevant material did not establish jurisdictional error. Fact finding was a matter for the decision-maker. The Court was concerned with whether the decision-maker so acted as to warrant the conclusion that she/he did not perform the statutory task. See SZRKT at [97].

41    The Minister submitted that he was not bound to engage in an evaluation of the likelihood of a person engaging in future conduct that may cause harm. He referred to Buchwald v Minister for Immigration and Border Protection [2016] FCA 101; 242 FCR 65 at [72]; BMX15 v Minister for Immigration and Border Protection [2016] FCA 1183; 244 FCR 153 at [18]-[31]; Moana at [73]-[74].

42    The Minister’s position was that, so far as the Minister acting personally under s 501CA(4) was concerned, risk to the Australian community was not a mandatory relevant consideration.

43    In the alternative, the Minister submitted that the only consideration he was possibly required to consider was the risk of harm to the Australian community if Mr Hooton remained in Australia. See Buchwald at [70]-[71]. The Minister submitted that he considered that matter. He referred to [37]-[49] and [56]-[58] of his decision.

44    The Minister accepted it was probable that counsel for Mr Hooton put before the primary judge the submission that if the Minister went down the path of assessing the question of supervision as part of the question of risk, as the Minister did at [46], then he had to take into account the provisions of the Community Protection (Offender Reporting) Act. In any event, counsel for the Minister did not object to Mr Hooton putting his argument in that way on the appeal.

45    The Minister drew to the attention of the Court what was said in Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81 at [30] per Charlesworth J, Flick and Perry JJ agreeing, as follows:

… Whether or not it was mandatory for the Minister to consider the risk of harm to the Australian community posed by Mr Muggeridge’s continued presence in Australia is not to the point in the present case. The Minister in fact performed, or at least purported to perform, an evaluation of the likelihood of Mr Muggeridge re-offending, having particular regard to Mr Muggeridge’s personal circumstances. If illogicality or unreasonableness in the legal sense affects the Minister’s evaluation of the likelihood of Mr Muggeridge re-offending, the decision could not be saved from invalidity merely because a similar evaluation is not mandated by the Act in every case in the sense explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

Consideration

46    It is common ground that, at the level of fact, the Minister was not aware of Mr Hooton being a reportable offender within the meaning of the Community Protection (Offender Reporting) Act. Under that Act, reportable offences are defined in s 9 and Class 2 is dealt with in s 11 by reference to Schedule 2. “Reportable offender” is defined in s 6 as a person whom a court sentences for a reportable offence. The term “reporting obligations” means those imposed on the reportable offender by Part 3.

47    It is to be recalled that what the Minister said at [46] was that Mr Hooton’s rehabilitation was untested in the community, where he would not be subject to the supervision of the parole service. The Minister also said at [56] that he could not rule out the possibility of further offending by Mr Hooton.

48    It seems therefore that the first complaint on judicial review is that the Minister did not take into account Mr Hooton’s obligations to report and register his personal details within seven days of not being in custody and, having become registered, effective from 15 June 2015, to continue to comply with the reporting obligations under Part 3 for 15 years.

49    It appears that this information was first put before the Minister by means of Mr Hooton’s affidavit in the Federal Circuit Court affirmed 17 August 2016 at [9]. It will be recalled that the Minister’s decision was dated 22 July 2016.

50    Counsel for Mr Hooton ultimately accepted that whether, and when, the notices were given under the Community Protection (Offender Reporting) Act were not relevant issues. It remains to note that Mr Hooton could have, but did not, bring to the attention of the Minister in his April 2016 submissions the notices served on him under that Act.

51    The ultimate issue to be determined is whether it was a judicially reviewable error for the Minister to proceed on the basis that Mr Hooton’s rehabilitation was untested in the community, where he would not be subject to the supervision of the parole service, when in fact Mr Hooton was the subject of obligations under the Community Protection (Offender Reporting) Act. There is also a logically anterior question as to whether s 26 of that legislation, as it applied to Mr Hooton, was a mandatory relevant consideration in the Minister’s conclusion as to the lack of supervision of Mr Hooton in the community as an aspect of the Minister’s assessment of risk to the Australian community.

52    The statutory issue was whether the Minister was satisfied that there was another reason why the original decision should be revoked. He stated he was not so satisfied and accordingly he decided not to revoke the original decision to cancel Mr Hooton’s visa.

53    In our opinion, the obligations imposed on Mr Hooton by the Community Protection (Offender Reporting) Act were not mandatory relevant considerations, that is, considerations the Minister was legally obliged, as a matter of his jurisdiction, to take into account when acting personally under s 501CA(4).

54    The starting point is the decision of the Full Court in BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78; 252 FCR 82. There the Full Court, having referred to Moana, a case about s 501(2) of the Migration Act, said:

[28] The task of the Minister required by s 501(2) of the Migration Act, which was examined by the Full Court in Moana 230 FCR 367, is not the same as that imposed on the Minister by s 501CA.

[29] Section 501(2) requires the Minister to assess his or her level of satisfaction as to whether the person has passed the character test as defined by s 501(6). Section 501(6) is relatively prescriptive, including s 501(6)(d) which requires the Minister to consider whether, in the event the relevant person is allowed to enter or to remain in Australia, there is a risk that the person would, inter alia, engage in further criminal activity or represent a danger to the Australian community (or to a segment of that community).

[30] On the other hand s 501CA, in particular s 501CA(4), requires the Minister to engage in a different decision-making process. Pursuant to s 501CA(4) the Minister may revoke a visa cancellation decision if the person makes representations and the Minister is satisfied either that the person satisfies the character test or that there is another reason why the original decision should be revoked. The factors to which the Minister can have regard in determining whether or not to revoke a visa cancellation decision are unconfined by the statute, subject to the principle that they must be those which can be implied from the subject-matter, scope and purpose of the legislation: Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39–40.

[31] In this case, in assessing whether another reason existed to warrant cancellation of the visa cancellation decision, the Minister had regard to the submissions of the appellant, and more generally to considerations set out in his conclusions (including under the heading “Protecting the Australian community”).

[32] It is not in dispute that the protection of the Australian community is a relevant consideration to which the Minister should have regard in determining whether “another reason” exists for revoking a visa cancellation decision under s 501CA, and we accept that this factor is relevant in terms of the subject-matter, scope and purpose of s 501CA. A fundamental issue raised by the first two grounds of appeal, however, is the manner in which the Minister should approach the task of evaluating whether there is a prospective danger to the Australian community should the relevant visa cancellation decision be revoked. In the first and second grounds of appeal the appellant focused on the following broad matters, which we will consider in turn.

55    As we read these reasons, their Honours did not say in terms that risk to the Australian community is a mandatory relevant consideration for the Minister as decision-maker. It may have been common ground: see [32] of the reasons, set out above. The real point of the case was whether the Minister was under an obligation to evaluate in a particular way the risk of harm to the Australian community of the appellant re-offending. A similar case is Folau v Minister for Immigration and Border Protection [2017] FCAFC 214; 158 ALD 394.

56    Muggeridge was a case about legal unreasonableness and not about mandatory relevant considerations.

57    Further, Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 did not proceed on this basis as it concerned representations made in response to an invitation under s 501CA(3). In the present case of course the representations did not touch on the Community Protection (Offender Reporting) Act so that line of reasoning is not available to Mr Hooton.

58    Therefore, in our opinion, it is open to this Court to consider whether risk to the Australian community is a mandatory relevant consideration where the Minister makes a decision under s 501CA(4). In our opinion, at least in the absence of representations in response to an invitation under s 501CA(3) raising the point as a significant issue, risk to the Australian community is not such a mandatory relevant consideration.

59    We refer to Foster v Minister for Customs and Justice [2000] HCA 38; 200 CLR 442 at [23] per Gleeson CJ and McHugh J. At [30], their Honours said:

Whatever may be the theoretical possibility in other cases, when regard is had to the nature of the argument that was advanced by the appellant’s solicitor in the present case, it was open to the Minister, on the material before her, to conclude that she was not satisfied that it would be unjust or oppressive or too severe a punishment to surrender the appellant. Furthermore, in the light of the nature of the representations made to her, there was no statutory obligation, express or implied, which bound the Minister to undertake further investigation or inquiry before concluding that she was not so satisfied. In view of the way the appellant’s case was put to her, she was entitled to conclude that no further inquiry was necessary. She was not bound to make further investigation of the appellant’s prospects of rehabilitation. She was not bound to investigate further the assistance he had supposedly given the authorities. She was not bound to put the results of such investigations, together with everything else she knew of the facts of the case, before a person experienced in United Kingdom sentencing practice and seek an opinion as to how a sentencing judge was likely to respond to them. The Act does not impose such obligations, either expressly or by implication. The Minister was entitled to consider and evaluate the arguments advanced by the appellant's solicitor on the materials before her. She was not obliged to conduct her own sentencing investigation. The Minister was entitled to conclude, on the information put before her, that she was not satisfied that, by reason of the matters raised by the appellant's solicitor, it would be unjust or oppressive or too severe a punishment to surrender the appellant.

Gaudron and Hayne JJ agreed, at [35]. See also NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; 220 FCR 44 at [165]-[168].

60    Earlier, the High Court had said in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323, McHugh, Gummow and Hayne JJ, at [73]-[74] (omitting footnotes):

… The considerations that are, or are not, relevant to the Tribunal’s task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider. ...

This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.

61    In the alternative and assuming we are wrong about that, the conclusion that risk to the Australian community is a mandatory relevant consideration does not mean that every circumstance which bears on that risk is itself such a mandatory relevant consideration, in the sense that failure to have regard to that circumstance goes to the Minister’s jurisdiction and vitiates his exercise of it.

62    While it may be accepted that a purpose of s 26 of the Community Protection (Offender Reporting) Act is to facilitate supervision of a person such as Mr Hooton, the bare obligation to register his personal details as set out in s 26, albeit subject to the penalty provisions in ss 63 and 64, does not seem to us to go to the Minister’s jurisdiction to be satisfied of another reason why the original decision under the Migration Act should be revoked.

63    How the obligations imposed by the Community Protection (Offender Reporting) Act might bear on the Minister’s discretion was a matter about which Mr Hooton could make representations to the Minister. Although, assuming he was not given the notice at the earliest time contemplated by s 67(2) of the Community Protection (Offender Reporting) Act, he could not have made those such representations at the time he applied for revocation on 23 February 2015, he did make supplementary submissions on 29 April 2016 which was after he had been registered under the Community Protection (Offender Reporting) Act.

64    Even if he had made such representations, it is not inevitable that that integer of his representations would have been a mandatory relevant consideration in the Minister satisfying himself that there was another reason why the original decision should be revoked. See Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [56]. See also Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 at [136]-[139] and Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [66]-[72].

65    Following Viane, it may be that such a representation, if not considered by the Minister, might lead to a conclusion of denial of procedural fairness. But that is not this case as no such representation was made.

66    Although counsel for Mr Hooton submitted that he did not raise legal unreasonableness as a separate ground of appeal it may be worth noting that we do not accept the submission that it was legally unreasonable for the Minister, having referred to the absence of supervision by the parole service, not to refer to s 26 of the Community Protection (Offender Reporting) Act. As we have said, that provision, or the operation of that provision, whether considered by itself or in the wider context of that legislation, may facilitate supervision but does not itself constitute supervision. Mr Hooton adduced no factual material before the primary judge as to the operation of the Community Protection (Offender Reporting) Act, either generally or in relation to his own case. As counsel for Mr Hooton accepted, the only evidence was in the provisions of s 26 of the Community Protection (Offender Reporting) Act itself.

67    It is not therefore material whether the primary judge held that the Minister was to be taken to have knowledge of the Community Protection (Offender Reporting) Act or its provisions. In our opinion, the primary judge did not make such a finding but, as his Honour said at [67], made that assumption for the purpose of analysing Mr Hooton’s claims. His Honour’s reasoning was that on that assumption those claims failed. We do not accept the submission put by counsel for Mr Hooton that the primary judge did make such a finding.

68    Once, as we have held, the terms of s 26 of the Community Protection (Offender Reporting) Act are not a mandatory relevant consideration for the Minister in satisfying himself that there was no other reason why the original decision should be revoked, and once, as we have held, it was not legally unreasonable for the Minister not to take the terms of s 26 into account when addressing the issue of future supervision of Mr Hooton, we see no room for an analysis that involves the proposition that the Minister was ‘fixed with notice’ of the terms of s 26. We therefore do not accept the submission on behalf of Mr Hooton to that effect.

The notice of contention

69    We turn then to the proposed notice of contention. It was in the following form, annexed to an interlocutory application filed 1 August 2018:

The Respondent contends that the judgment of the Federal Court of Australia given on 29 May 2017 in WAD 527 of 2016 should be affirmed on grounds other than those relied on by the Court. The reasons for decision in respect of the judgment of the court below are Hooton v Minister for Immigration and Border Protection [2017] FCA 586 (Reasons).

The Respondent does not seek to cross-appeal from any part of the judgment.

The grounds relied on by the Respondent to support the judgment of the court below are as follows:

1.    The Appellant did not draw to the attention of the Respondent the:

1.1.    existence, and impact on the Appellant, of the Community Protection (Offender Reporting) Act 2004 (WA) (Community Protection Act); or

1.2.     service on the Appellant, at the Karnet Prison Farm on 2 June 2015, of a notice under the Community Protection Act requiring the Appellant to report to the Western Australian police before 11 June 2015 (Community Protection Notice),

in the Appellant’s submissions to the Respondent in support of the Appellant’s request dated 31 January 2015, made under section 501CA (4) (a) of the Migration Act 1958 (Cth) (Migration Act), to revoke the decision of the Respondent's delegate made on 27 January 2015 to cancel the Appellant's visa. See Reasons at [15], [19], [33] (3rd bullet point) & [38].

2.    Having regard to paragraph 1 above, the Respondent did not have notice (whether actual, constructive or judicial) of the:

2.1.    existence, and impact on the Appellant, of the Community Protection Act; or

2.2.    service of the Community Protection Notice on the Appellant.

See Reasons at [41], [45]-[47] & [65]-[67].

3.    The court below should have rejected the assumption that the Respondent would not be ignorant of State and Territory legislation, such as the Community Protection Act, requiring sex offenders to report to the authorities. See Reasons at [65] - [67].

4.    The court below should have upheld the submission made on behalf of the Respondent that there was no possibility that the Respondent’s decision made on 22 July 2016 under section 501CA(4) of the Migration Act not to revoke the cancellation of the Appellant's visa would have been any different. See Reasons at [57].

5.     Having regard to paragraph 1 above, the Appellant was disentitled to relief from the court below in the form of quashing the Respondent’s decision made on 22 July 2016 under section 501CA(4) of the Migration Act not to revoke the cancellation of the Appellant’s visa. See Reasons at [33] (3rd bullet point).

70    As we have indicated, the required extension of time for the filing of that document was opposed.

71    The time required is specified by r 36.24 of the Federal Court Rules 2011 (Cth). That rule specifies that a notice of contention is to be filed within 21 days after the notice of appeal is served. It appears that the notice of appeal was served on 19 March 2018.

72    An explanation for the delay is provided in the 1 August 2018 affidavit of Peter John Corbould, lawyer, at the Australian Government Solicitor. He deposed, in effect, that although Mr Hooton filed a notice of appeal on 19 March 2018 Mr Corbould did not again review the relevant judgment until he started preparing a brief to counsel in July 2018. He did not consider until then whether a notice of contention should be filed on behalf of the respondent. Thereafter he acted promptly, consulting counsel and, on 24 July 2018, sending a copy of the respondent’s proposed notice of contention to Mr Hooton’s counsel.

73    We take into account that notice was given to Mr Hooton’s counsel on 24 July 2018, some four weeks before the hearing of the appeal. We also take into account that the appellant’s counsel has, in his submissions, put forward detailed arguments as to the merits of the proposed grounds.

74    Mr Hooton’s opposition to the extension of time first noted that the notice of contention should have been filed by 10 April 2018 whereas it was in fact filed on 1 August 2018. He submitted that the principal consideration relevant to the extension of time was the proper administration of justice and the need to ensure procedural fairness. Mr Hooton submitted that if no arguable case was disclosed, no useful purpose was served by granting leave to proceed out of time. He submitted that the notice of contention sought to revisit submissions made to the primary judge and not accepted by him in his reasons for judgment. The appropriate vehicle was a notice of cross-appeal, Mr Hooton submitted. He also referred to Repatriation Commission v Patterson [2006] FCAFC 165; 64 ALD 66 at [51]. Counsel for Mr Hooton submitted that while there was no extraordinary prejudice to Mr Hooton, no reasonable explanation had been offered for what was a gross delay on the part of the Minister. Even if the notice of contention had been filed within time, the proceeding was misconceived. It had no reasonable prospects of success whether considered from the viewpoint of the form, or its substance.

75    In our opinion, there is a reasonable explanation for the delay in filing the notice of contention and there is no relevant prejudice to Mr Hooton. We do not accept that the wrong form has been used. It does not appear that the Minister seeks to vary the order of the primary judge, so a notice of contention is apposite. Second, we do not consider that the criticism made by the Full Court in Patterson applies. In that case the notice of contention was filed at first instance in an application for judicial review of the decision of a tribunal, inviting the primary judge to rehear the whole case before the tribunal. In the present case the Full Court is concerned with a notice seeking to uphold the orders of the primary judge but on different grounds.

76    In these circumstances it is necessary to consider whether the entirety of the notice of contention is of sufficient substance to warrant an extension of time.

77    In our opinion there is sufficient substance in grounds 1, 2 and 3 to warrant an extension of time. We would not grant an extension of time to file the notice of contention in respect of grounds 4 and 5 as they seem to us to be of no substance. As to ground 4, it seeks to draw the Court impermissibly into the merits of the Minister’s decision. As to ground 5, it seeks to put that there was an independent and separate basis for the Minister’s decision. This also seeks to draw the Court impermissibly into the merits of the Minister’s decision.

78    We would therefore extend time to permit the Minister to rely on grounds 1, 2 and 3 of his notice of contention.

79    We next turn to consider those grounds.

80    The Minister submitted that Mr Hooton did not draw to his attention the existence, and impact on him, of the Community Protection (Offender Reporting) Act or service of the Community Protection Notice. It followed, the submission went, the Minister did not have notice or knowledge (whether actual, constructive or judicial) of those matters. Mr Hooton did not contend the Minister had actual knowledge of those matters. As to constructive knowledge/notice, the Minister submitted the concept only applied where the material in question was in fact on the Department’s file but was not placed before the Minister. The Community Protection Notice served on Mr Hooton at Karnet Prison Farm on 2 June 2015, while he was in criminal custody, did not thereby come into the Department’s possession when Mr Hooton was transferred to Yongah Hill Immigration Detention Centre on 4 June 2015. The form which Mr Hooton signed on 15 June 2015 did not come into the Department’s possession simply because he was then at Yongah Hill Immigration Detention Centre. Nothing in the Migration Act changed the legal ownership of those documents. The primary judge, the submission went, should have rejected the assumption that the Minister would not be ignorant of the terms and application to Mr Hooton of the Community Protection (Offender Reporting) Act.

81    Mr Hooton submitted that he did not receive the Notice of Reporting Obligations until 15 June 2015, after the time frame for making representations to the Minister had expired. Even if he had turned his mind to forwarding the Notice to the Minister, the time limit had expired and the Migration Act prohibited the Minister from taking it into consideration.

82    Mr Hooton submitted that he was not required to provide the Minister with the Notification of Reporting Obligations. The Minister’s notice of the Community Protection (Offender Reporting) Act necessarily included the notice of the supervisory provisions imposed upon a reportable offender such as Mr Hooton.

83    In light of the view we take on the appeal itself, it is not necessary to consider the notice of contention. We do so for completeness.

84    Ground 1 is no more than prefatory and states factual matters that are not in controversy.

85    As to ground 2, it may be accepted that the Minister did not have actual notice or judicial notice of the existence, and impact on Mr Hooton, of the Community Protection (Offender Reporting) Act or service of the Community Protection Notice on Mr Hooton.

86    On analysis, at least in the absence of representations in fact made by Mr Hooton directed to this issue, the question comes back to whether or not the terms, or application to Mr Hooton, of s 26 of the Community Protection (Offender Reporting) Act was a mandatory relevant consideration for the Minister in satisfying himself that there was another reason why the original decision should be revoked. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 66 where Brennan J said at 66: “A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts. But if his Department fails to do so, and the validity of the Minister’s decision depends upon his having had regard to the salient facts, his ignorance of the facts does not protect the decision.”

87    In the present case it was not suggested that the Minister, acting personally in making the decision, did so with actual knowledge of the terms of s 26 of the Community Protection (Offender Reporting) Act. There was no finding of fact by the primary judge that the Minister was to be taken to have that knowledge. There was no finding of fact by the primary judge that the Department had that knowledge.

88    It follows, in our opinion, that the grounds of the notice of contention in respect of which we have granted an extension of time stand or fall with the outcome of the appeal.

Conclusion and orders

89    We would dismiss the appeal, with costs, except that the Minister should bear his own costs of and incidental to the notice of contention on the basis that he sought an indulgence from the Court.

Associate:

Dated:    30 August 2018