FEDERAL COURT OF AUSTRALIA

HVLC v Minister for Home Affairs [2019] FCAFC 204

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the Applicant to file the notice of appeal, appeal book and Applicant’s outline of submissions out of time.

2.    The appeal be dismissed.

3.    The Applicant pay the costs of the First Respondent, as agreed or assessed.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

KERR J:

1    The Appellant, HVLC, requires an extension of time to appeal a decision of Colvin J in HVLC v Minister for Home Affairs [2019] FCA 616. In that proceeding, his Honour dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) that had affirmed a decision by the Minister’s delegate to refuse the now Appellant a Class XE (Subclass 790) Safe Haven Enterprise Visa (Visa) on the basis that the Appellant did not pass the character test in s 501 of the Migration Act 1958 (Cth) (Migration Act).

2    The reasons why this proceeding was commenced by an application for an extension of time need not be further discussed. The Minister does not oppose the extension of time sought and the Court grants leave to HVLC to rely on his proposed ground of appeal as his ground of appeal in these proceedings.

3    There is a single ground of appeal. In substance, that ground reiterates a contention pressed in the Court below. It is stated as follows:

2.    The learned primary Judge erred by finding that the Tribunal did not make a jurisdictional error by its misconstruction or misunderstanding of paragraph 12.3 of Direction no. 65, the impact on victims consideration.

Particulars

i)    The learned primary Judge was in error by finding at [14] and [17] that the impact of the Appellant’s offending on the victim and his family was an independently relevant consideration.

ii)    The learned primary Judge was in error by finding at [17] that the impact of the Appellant’s offending on the victim and his family was not taken into account by the Tribunal in its assessment of paragraph 11.1.1, the nature and seriousness of the conduct.

BACKGROUND: THE TRIBUNAL’S REASONS

4    It is uncontentious that the Appellant did not satisfy the character test. He had been convicted of an offence involving sexually based conduct against a child, a nine-year old boy. The term of imprisonment which was imposed for that offence was in excess of the threshold statutory period of 12 months: Migration Act s 501(6)-(7).

5    Following the delegate’s refusal to grant him the Visa he had sought, the Appellant applied for review in the Tribunal. It is uncontentious that the Tribunal was bound by s 501 of the Migration Act. It is also common ground that the manner in which the Tribunal’s power was to be exercised was subject to Ministerial Direction No 65 (Direction 65), which, relevantly, required the Tribunal to address as primary considerations:

(a)    The protection of the Australian community from criminal or other serious conduct;

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

(c)    The expectations of the Australian community.

6    It is uncontentious that HVLC did not have any minor children.

7    Direction 65 provided that, in addition to the considerations to which primary regard was to be given, the Tribunal was also required to take into account any other considerations relevant to its review. Those considerations were expressed to include, but were not limited to, international non-refoulement obligations; impact on family members; impact on victims and impact on Australian business interests.

8    The structure of the Tribunal’s reasons broadly followed the framework of Direction 65, albeit, in respect of the primary considerations, under two headings: “Nature and Seriousness of the Conduct” and “Expectations of the Australian Community”.

9    In respect of the matters it dealt with under the heading “Nature and Seriousness of the Conduct”, the relevant passages of the Tribunal’s decision are as follows:

52.     The evidence before me is of a single offence committed by HVLC. That offence carries a maximum sentence of ten years imprisonment in the state of Victoria. The sentence awarded to HVLC of 398 days imprisonment is therefore at the low end of the maximum sentence available. That said, HVLC’s offence against a vulnerable child is undoubtedly serious and Her Honour addressed him on this issue in the following terms:

There are some things that make your offence even more serious. These are the age difference…between you and the boy and that you committed this offence quite openly, talking to the boy in broad daylight with other children and some adults around the area and taking him in your car to a public place, where the offence was committed on the back seat of your car

…

…he was a vulnerable boy, who has an intellectual disability and a medical complaint.

53.     HVLC acknowledges the seriousness of his crime in his written evidence and expresses remorse for the impact it had on the victim and the victim’s family. He submits that he has ‘done a horrible thing’ and let everyone down, stating that he ‘could not be sorrier…for the victim.’ But when given a number of opportunities during the hearing to reflect upon the ramifications of his conduct on the victim and the young boy’s family, I found his oral evidence to be perfunctory and lacking in insight. I place less weight on his expressions of remorse as a consequence.

54.     Amongst the factors the sentencing judge accepted were in favour of HVLC, was the contention that HVLC had suffered family tragedy ‘shortly before’ committing his offence:

Shortly before you committed the offence you heard that your father and a cousin had been killed by an Islamist militant group in Pakistan, and your brother, and brother in law, were missing. You have not really been able to give any explanation for your offence, but you have told a psychologist that your lawyer sent you to…that: “At the time your mind was not working. You lost everyone.”

55.     In weighing that context against the seriousness of HVLCs offending, however, the sentencing judge concluded that HVLC’s crime could only be treated as ‘…a little less blameworthy’ than someone who has not had the life HVLC had. It is nevertheless clear that Her Honour considered HVLC’s state of mind had been affected by news of family tragedy and accepted this as affecting his culpability to some degree. Earlier in these reasons, however, a number of inconsistencies were highlighted in HVLC’s evidence regarding the family tragedies he relies upon. It is difficult to reconcile HVLC’s responses and explanations at the hearing with those inconsistencies, which elevates concerns about his candour and reliability as a witness. HVLC was at times unable to recall information he had previously and prominently relied upon, and that the court and subsequently the Department had relied upon in having his protection claims determined. But notwithstanding my concerns about HVLC’s candour, it doesn’t change the fact that his criminal conduct is not explained by the context he relies upon. While news of family tragedy can elicit a range of responses in a person, such news in no way explains or justifies the sexual assault of a child.

56.    The evidence supports a finding that HVLC’s offence is objectively very serious.

(Footnotes omitted)

10    The relevant passages of the Tribunal’s consideration under the heading “Expectations of the Australian Community” are as follows:

69.     Paragraph 11.3 of the Direction states:

‘The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.

70.     There are positive aspects to reflect upon, most notably HVLC’s accumulation of courses and counselling sessions during his imprisonment and immigration detention. His conduct in immigration detention, during the periods covered in the 15 detention reports, also reflects positively on him. I place some weight on these factors favourable to HVLC.

71.     But HVLC has clearly breached the reasonable expectations of the Australian community. He spent a relatively short time in Australia before committing a sexual offence against a vulnerable child, which has caused significant and enduring harm to that child. The community would be concerned by the reference in the sentencing remarks to their being ‘no real explanation’ for HVLC’s offending behaviour, other than he was ‘overwhelmed…and not thinking properly.’ The community would also be concerned about the inconsistencies in HVLC’s evidence about the precise nature of the family tragedies he says affected his state of mind in proximity to his offending, and in his life story prior to arrival in Australia. The community would also be concerned about the clinical psychologist’s assessment that HVLC ‘presents as…easily overwhelmed by social and emotional factors that undermine his judgement.’

72.     Paragraph 6.3(5) of the Direction states that ‘Australians may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.’ Paragraph 6.3(7) of the Direction also refers to ‘The length of time a non-citizen has been making a positive contribution to the Australian community’ as a principle to be taken into account when applying relevant considerations. On the evidence, HVLC has made little if any meaningful contribution to the Australian community. To the contrary, he has not been law-abiding and committed a serious offence within approximately 15 months of arriving here. Moreover, the community has incurred considerable costs in dealing with the consequences of his unacceptable conduct. Under these circumstances the Australian community would have a low tolerance of HVLC’s criminal conduct and expect that he should not hold a visa.

73.     The primary consideration Expectations of the Australian community weighs strongly in favour of refusing HVLC’s visa application.

11    Having addressed those factors, later in its reasons under the heading “Other Considerations” and subheading “Impact on Victims”, the Tribunal reasoned and concluded as follows:

92.     Counsel for the Applicant appropriately submits that the offence committed by HVLC ‘must have an ongoing impact on the victim and his family.’ I note also in this regard the sentencing remarks at HVLC’s criminal trial, in which Her Honour states:

…it is likely that the boy you sexually abused will suffer from the    effects of [this] crime for some time into the future…

93.     I find that this consideration weighs in favour of refusing HVLC’s visa application.

12    The Tribunal completed its reasoning with a summary which concluded that:

97.     HVLC does not pass the character test under section 501(6)(a) of the Act because he has a substantial criminal record within the meaning of section 501(7)(c). Given that he has been ‘convicted…of one or more sexually based offences involving a child,’ he also fails the character test under section 501(6)(e)(i) of the Act.

98.     HVLC is a person to whom Australia owes protection, and after applying the considerations in Part B of the Direction, I find that Australia’s International non-refoulement obligations weigh strongly in his favour. But this does not outweigh the two primary considerations relevant in this matter, coupled with the impact on victims, which are strongly against exercising the discretion to grant HVLC a visa.

13    The Tribunal accordingly affirmed the decision of the Minister’s delegate to refuse the application for the Visa.

THE FEDERAL COURT AT FIRST INSTANCE

14    The Appellant sought judicial review in the Federal Court of Australia. He advanced a number of grounds of review, one of which mirrors the single ground advanced in this appeal as set out above. The other grounds are not pressed in this appeal.

15    Insofar as his Honour’s reasons are relevant to the ground of appeal pressed before the Full Court, the learned primary judge dealt with the contentions advanced before him as follows:

12     The Tribunal's reasons followed the scheme of the Direction. When it came to 'other considerations' the reasons dealt with the four matters listed in para 12 in order. In that context, it may be inferred that when the Tribunal dealt with matters under the heading 'Impact on victims' it was intending to address the matters in para 12.3(1) as stated above. It did so in the following terms (at paras 92 and 93):

Counsel for the Applicant appropriately submits that the offence committed by [the applicant] 'must have an ongoing impact on the victim and his family.' I also note in this regard the sentencing remarks at [the applicant's] criminal trial in which Her Honour states:

…it is likely that the boy you sexually abused will suffer from the effects of [this] crime for some time into the future …

I find that this consideration weighs in favour of refusing [the applicant's] visa application.

13     The Tribunal was in error in treating para 12.3(1) as being concerned with the effects of the crime on the victim and his family. Rather, para 12.3(1) is concerned with the additional impact of 'a decision to grant a visa'. It requires a particular focus upon the consequences of the exercise of a discretion to grant a visa with the result that the applicant will remain in Australia. This was the conclusion reached by North J in Williams v Minister for Immigration and Citizenship [2013] FCA 702 at [58] (in considering an earlier version of the Direction in which the relevant para was expressed in substantially the same terms). There are many ways in which such an outcome may have an impact upon the victim and his family. Importantly, para 12.3(1) provides that such matters are to be taken into account 'where that information is available'. It was common ground that no such information was available to the Tribunal in this case. It follows that there was no error in failing to consider the impact of a decision to grant the visa on the victim and his family.

14     Nor could it be said to have been irrelevant to have considered the way the criminal conduct of the applicant affected the victim and his family. It was an aspect of evaluating the seriousness of the offending conduct and also a consideration that could be viewed as independently relevant and therefore a matter that must be taken into account under para 12(1).

15     However, jurisdictional error was alleged to arise by reason of the Tribunal's approach to the effect on the victim and his family because of the way in which the conclusion about the impact on the victim and his family was brought to account by the Tribunal in reaching its conclusion. The Tribunal found that Australia's international non-refoulement obligations weighed strongly in the applicants favour. However, it then stated (at para 98):

But this does not outweigh the two primary considerations relevant in this matter, coupled with the impact on victims, which are strongly against exercising the discretion to grant [the applicant] a visa.

16     The two primary considerations were a finding that the offence committed by the applicant was objectively very serious (para 56) and a finding that protection of the Australian community weighed strongly in favour of refusing to grant the applicant a visa (para 67). It was submitted that the effect was that the Tribunal considered the effect on the victim and his family in concluding that the offending was serious and then counted the same matter as a further and independent relevant consideration when reaching its conclusion. The submission was to the effect that there was a form of double weighting given to the effect of the conduct on the victim and his family.

17     I do not accept that the foundation for the 'double weighting' contention has been made out. In the course of its consideration as to whether the conduct was serious the Tribunal did refer to the impact on the victim and the victim's family but only for the purpose of considering whether the applicant had demonstrated remorse (para 53). Therefore, I do not accept that the Tribunal engaged in a form of double counting of the effect of the offending on the victim and his family. Rather, the Tribunal approached the matter on the basis that it was when the matters in para 12.3 were to be considered that the effect of the offending on the victim and his family was to be evaluated. For reasons I have stated that was a misunderstanding of the proper approach. However, it was not an approach that gave rise to jurisdictional error. It resulted in no more or less than the Tribunal considering a relevant matter as it was obliged to do.

THE APPEAL

16    The Appellant’s submissions contest the correctness of the reasoning of the primary judge as set out at [14] and [17]. The Appellant’s contentions with respect to [14] should be dealt with first in these written reasons, although the two issues were addressed in reverse order in the giving of ex-tempore reasons.

The Appellant’s impermissible consideration contention

17    It will be recalled that the primary judge reasoned at [14]:

Nor could it be said to have been irrelevant to have considered the way the criminal conduct of the applicant affected the victim and his family. It was an aspect of evaluating the seriousness of the offending conduct and also a consideration that could be viewed as independently relevant and therefore a matter that must be taken into account under para 12(1).

18    Mr Glenister, counsel for the Appellant, took issue with that reasoning. Counsel submitted that it was not open as a matter of law for the Tribunal to give attention to the matters to which it referred at [92] and [93] with respect to the actual impact on the victim independently of it giving attention to the primary considerations referred to in Direction 65. Outside that context, whatever might have been the impact of the offending on the victim was an impermissible consideration having regard to the terms of s 501(1) of the Migration Act.

19    Mr Glenister accepted that that no such limitation is expressly stated by s 501(1). However, he submitted that such a limitation arose by way of implication having regard to two circumstances:

    First, Mr Glenister submitted that on a true understanding s 501 regulated the entry and exit of persons eligible for a grant of permission to reside in Australia. In that context, it was beyond the lawful scope of s 501 for the Tribunal to have had regard to the consequences on a victim of the seriousness of an offence that a person might have previously committed: save insofar as that factor might be subsumed within an assessment of the nature of such an offence.

    Secondly, Mr Glenister submitted that having regard to the decision of the High Court of Australia in Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333 no punitive aspect is permissible in the application of s 501. He submitted that having regard to the past consequences of a visa applicant’s criminal conduct with respect to its effect on his victim must necessarily be so characterised.

Consideration

20    In Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24, Mason J at pp 39-40 gave attention to how a court may discern what are and are not relevant considerations where a broad and indeterminate discretion has been legislatively conferred. His Honour concluded that the boundaries are to be ascertained having regard to the subject matter, scope and purpose of the particular provision.

21    In my view it is implausible that on the true construction of s 501 of the Migration Act, the actual harm that a person has caused others in the course of their criminal offending should be excluded from those considerations that may be taken into account as material to whether that person should be permitted to enter or remain in Australia. Moreover, in my view it does not follow that taking into account such harm can only be relevant to a punitive purpose. It may also be relevant to a protective purpose.

22    I therefore reject the Appellant’s submission that what the Tribunal took into account at [92] and [93] of its reasons were mandatory irrelevant considerations in the sense of considerations to which s 501 of the Migration Act, on its proper construction, required the decision-maker not to have regard. Accordingly, I discern no error in the reasoning of the primary judge at [14].

The Appellant’s double weighting contentions

23    The second proposition advanced by the Appellant was that the primary judge fell into error when his Honour reasoned at [17] that the foundation for a double weighting contention had not been established:

I do not accept that the foundation for the 'double weighting' contention has been made out. In the course of its consideration as to whether the conduct was serious the Tribunal did refer to the impact on the victim and the victim's family but only for the purpose of considering whether the applicant had demonstrated remorse (para 53). Therefore, I do not accept that the Tribunal engaged in a form of double counting of the effect of the offending on the victim and his family. Rather, the Tribunal approached the matter on the basis that it was when the matters in para 12.3 were to be considered that the effect of the offending on the victim and his family was to be evaluated. For reasons I have stated that was a misunderstanding of the proper approach. However, it was not an approach that gave rise to jurisdictional error. It resulted in no more or less than the Tribunal considering a relevant matter as it was obliged to do.

Consideration

24    This Court, of course, is not bound by an inference drawn by the primary judge. It is equally capable of forming its own view as to whether or not an inference is available on the materials before it as was the judge in the court below. However, in my view the conclusion that his Honour reached at [17] was sound. The inference was open to be drawn and the primary judge was correct to have drawn it.

25    In my view, in neither [52], [53], nor [71]-[73] (extracted above), did the Tribunal give any focused attention, if it gave any attention at all, to the extent or nature of the harm that was actually suffered by the victim of the Appellant’s offending. The Tribunal’s reference to the trial judge’s sentencing remarks, relied upon by Mr Glenister, were references to the objective circumstances of the Appellant’s offending and whether or not he had offered a plausible reason why his offending should not be regarded as relevant to the primary criteria the Tribunal was then considering.

26    It can be accepted that the Tribunal’s reference at [53] of its reasons to the Appellant’s offending in the context of whether or not he had demonstrated remorse was premised on his acknowledgement that his offending had caused harm. However, the Tribunal was not then giving attention to the impact of the offending on the victim.

27    I turn then to the Tribunal’s findings expressed at [92] and [93]. They are expressed under the heading of “Impact on Victims”. Consistently with the primary judge’s reasoning, it is not in dispute that the Tribunal erred in that it failed to understand that that the reference to “impact on victims” in Direction 65 is not a reference to that which the victim has actually suffered in the past, but rather to whether the grant of a visa would have an adverse impact on the victim. However, his Honour concluded that the error of law that the Tribunal made in addressing the impact on the Appellant’s victim under that heading was not jurisdictional error because it was not relevantly material.

28    Having rejected Mr Glenister’s submission that it was impermissible for the Tribunal to take into account the considerations addressed at [92] and [93], this case ultimately collapses to a single proposition. That proposition is that the Tribunal, not having previously addressed the impact on the victim of the Appellant’s conduct when it was considering the primary considerations referred to in Direction 65 (where Mr Glenister accepts it had been open for the Tribunal to take that consideration into account), was not authorised to address that impact under the heading of one of the “other” relevant considerations.

29    In my view such an error, assuming it be legal error, could not be material. The Tribunal’s placing of its consideration of the impact of the Appellant’s conduct on the victim under a wrong heading and in the wrong place could not reasonably have affected its decision.

30    Any proposition that the mere mis-location of the Tribunal’s consideration of a relevant consideration within its reasons constitutes jurisdictional error is entirely implausible. Having regard to the decisions of the High Court in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 93 ALJR 252, on the facts of this case the error was not material. That is because the Tribunal was entitled, in any event, to have regard to the circumstance, with which it had not already dealt as an aspect of the primary considerations. As such, no question of double counting arises. For that reason, I would dismiss the appeal. I would order that the Appellant is to pay the Minister’s costs as agreed or assessed.

Associate:

Dated:    21 November 2019

REASONS FOR JUDGMENT

(Revised from the transcript)

BANKS-SMITH & JACKSON JJ:

31    We agree that the appeal should be dismissed for the reasons given by Kerr J.

Associate:

Dated:    21 November 2019