Federal Court of Australia

YKSB v Minister for Home Affairs [2020] FCAFC 224

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as assessed or agreed.

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

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from orders made by a judge of this Court, dismissing an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Home Affairs, not to revoke the mandatory cancellation of the appellant’s visa on character grounds.

2    The background facts were succinctly summarised by the primary judge as follows:

[4]    The applicant is a citizen of the United Kingdom. He moved to Australia from Scotland with his family in June 1965, when he was 13 years old. He has resided in Australia ever since, and at the time of the Tribunal’s decision was in his late sixties. The Tribunal’s reasons record (at [109]) that the applicant initially offended some four and a half years after arriving in Australia, comprising relatively minor offending, and again in April 1979 by assaulting a police officer or person assisting police. However, the conviction which triggered the mandatory cancellation of his visa was a conviction in December 2017. The applicant was convicted of six counts of indecent assault of a person under 16 years of age, and one count of gross indecency in the presence of a person under 16 years of age. The conduct on which those convictions were based occurred between 1982 and 1990, when the applicant was in his thirties. The conduct was described in detail in the Tribunal’s decision, and there was no dispute on this application that the Tribunal was correct to describe the offending (at [109] and elsewhere in its reasons to similar effect) as “undeniably and extremely serious”. In his evidence to the Tribunal, the applicant made what the Tribunal described in its reasons at [23] as a “ready acknowledgment” about the gravity of the offending.

[5]    The applicant’s evidence, and the case presented on his behalf to the Tribunal, sought to place his offending in the context of a disrupted and alcohol-affected period of his life, which the applicant profoundly regretted, and which bore little resemblance to his more recent life circumstances that involved a stable relationship, the support and watchfulness of his family, his registration as a sex offender, and his relatively low-level risk of reoffending, as assessed by two clinical and forensic psychologists (Mr Jeffrey Cummins and Dr Lauren Ducat) who gave evidence before the Tribunal.

3    The sole ground of appeal in the amended notice of appeal, corresponding to judicial review ground 3 before the primary judge, is that her Honour is said to have erred in:

a.    finding that the Tribunal gave active and intelligible consideration to the Appellant’s submission that his physical health was a factor that weighed in favour of revoking a decision of a delegate of the First Respondent to cancel the Appellant’s visa in the assessment of Primary Consideration A to Direction No. 79 as contemplated by SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365 and Navoto v Minister for Home Affairs [2019] FCAFC 135; and

b.    failing to find that by reason of the error alleged above the Tribunal constructively failed to exercise jurisdiction or committed a jurisdictional error.

4    There was apparent common ground in the Court below and on appeal as to the principles governing the extent of the obligation to address claims in support of representations made for the revocation of a visa cancellation decision under s 501CA(4) of the Migration Act 1958 (Cth). The dispute in this case was the application of these principles. Those principles were most recently restated, following a series of Full Court decisions on this topic, in Navoto v Minister for Home Affairs [2019] FCAFC 135 at [84]-[89], and endorsed again in Matthews v Minister for Home Affairs [2020] FCAFC 146, especially at [31]. As indicated below, those paragraphs of Navoto were expressly cited by the primary judge. The principles summarised in Navoto are (omitting reference to the individual authorities cited):

(1)    Representations regarding the revocation of a mandatory visa cancellation decision, made in response to an invitation by the Minister under s 501CA(3)(b) of the Migration Act, as a whole constitute a mandatory relevant consideration under s 501CA(4): Navoto at [84].

(2)    If the decision-maker overlooks

a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked, which if accepted would or could be dispositive of the decision, the decision-maker may, depending on the seriousness of the error, commit a jurisdictional error.

(Navoto at [85], citations omitted).

(3)    Adopting the words of the Chief Justice (the primary judge in Navoto v Minister for Home Affairs [2019] FCA 295, being the decision which was the subject of appeal in Navoto):

… it can be taken that a failure to consider or take into account matters of sufficient importance in the representations may amount to jurisdictional error either because it cannot be said that the required state of satisfaction has been reached in accordance with the section in all the circumstances, or because not to take such an important matter into account reflects a failure to take into account all the representations. One should be cautious about over reliance on textual taxonomical precision in this area. There will be jurisdictional error if material important in the representations has not been taken into account so as to make the purported exercise of the power not one that can be seen or characterised as being based on, or having taken into account, the representations as a whole. An evaluation of this will be context and circumstance specific. Textual formulae are of little assistance.

(reproduced in Navoto at [86]).

(4)    While clearly articulated arguments advanced in support of revocation must be the subject of “active intellectual consideration”, and the person making such representations “should not be left to guess what role material considerations have played in the decision”, being particularly important when “serious human consequences, such as deportation and exclusion from Australia” are at stake, this does not require that every piece of evidence and contention be referred to. Except in obvious cases, the sufficiency of the consideration given may be a matter of impression or inference. That process may be assisted by “the manner in which the representation was advanced, and the structure, tone and content of the decision-maker’s reasons”. What is required in judicial review is “a qualitative assessment as to whether the decision-maker has, as a matter of substance, had regard to the representations made”. See Navoto at [87]-[89].

5    It follows that while active intellectual consideration is generally required for a “substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked, which if accepted would or could be dispositive of the decision” (Navoto at [85]), that level of scrutiny is not necessarily required for every aspect of what is advanced in support of a representation to revoke a visa cancellation. A holistic assessment is required as to whether the decision-maker has sufficiently engaged with the representation viewed as whole and as to particular parts, including by reliance on impression or inference for claims that are embedded in the overall thrust of a representation, rather than being clearly and separately articulated, or perhaps made so by the overall nature of the case. A revocation decision-maker is not required to reconstruct the representation made to make parts more substantial, or more clearly articulated, than they are on the face of that representation, fairly read and in context.

6    The primary judge’s reasons, in 10 paragraphs, found that judicial review ground 3 should fail. Those paragraphs are so clear and succinct that it is better to reproduce them verbatim rather than attempt to summarise them any further:

[30]    By this ground, the applicant contends that the Tribunal left a factor out of account in its consideration of what weight to give to the need to protect the Australian community from risks that the applicant might reoffend in the future. The applicant submits his ill health substantively reduces the likelihood of any future reoffending, and the Tribunal failed to recognise this. He contends he made a specific representation about this to the Tribunal, and it was not taken into account.

[31]    For example, the applicant’s submissions to the Tribunal contended at [37]:

There is no evidence before the Tribunal of an unacceptable risk of reoffending. The suggestion that the Applicant might suddenly resume offending, after three decades of good conduct and despite profound improvements in his emotional and social wellbeing, a sustained shift in his drinking habits, the best evidence of treating medical professionals, increasingly poor health and indeed, the prospect of death and now, the knowledge that any further offending would almost inevitably lead to his deportation, is fanciful. This consideration weighs in favour of revoking the cancellation of the Applicant’s visa.

[32]    The applicant relied on evidence to support this contention, including a report produced by Dr Ducat as part of the sentencing process for his 2017 convictions. At [47] of the report, Dr Ducat stated:

[The applicant] has reportedly had access to his young grandchildren and on the basis of his self-report there appears to have been no claims or investigation of abusive behaviours towards them. A significant amount of time has elapsed since the offences, and I have no current evidence to suggest that he continued to offend during that time, even though he had opportunity. He is now in his mid-60’s, with significant health concerns and reduced libido, all of which serve to further reduce his risk.

[33]    The principles governing this ground have been articulated recently by many full courts. They are conveniently collected in the Full Court’s decision in Navoto v Minister for Home Affairs [2019] FCAFC 135 at [84]-[89].

[34]    In summary, in performing the statutory task required by s 501CA(4), a decision-maker must give active intellectual consideration to each representation which is clearly articulated (whether expressly or because it arises plainly on the material) as “a reason” that the mandatory visa cancellation should be revoked. Omitting or overlooking a clearly articulated representation, or failing to engage in an active intellectual sense with it, are capable of being characterised as errors affecting the jurisdiction of the decision-maker.

[35]    A reviewing court must undertake a qualitative assessment whether the decision-maker has, as a matter of substance, had regard to the representations made: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643 at [45].

[36]    In my opinion, the Tribunal’s reasons indicate it was aware of the evidence about the applicant’s declining health. At [149], it found:

The Applicant is a man of advancing years, currently aged 66 years. He does not enjoy overly good health having being diagnosed with pulmonary fibrosis, histiocytosis X and emphysema. He is medicated for those conditions holding prescriptions for seven medications on a daily basis including Ventolin and Seretide MDI Inhalers. Apart from his physical health problems, it is contended on behalf of the Applicant that his mental health has deteriorated as a result of both his incarceration for his criminal offending and these resulting proceedings.

(Footnote omitted.)

[37]    At [83], having found at [82] that, based on the reports of Mr Cummins and Dr Ducat, the applicant represented a “low to moderate risk of reoffending”, the Tribunal stated:

I am mindful of the factors militating in favour of a low risk of recidivism for this Applicant. As noted by Dr Ducat, the number of relevant risk factors significantly decrease over time. In particular, I note and accept that since his offending, the Applicant has spent a considerable period of time in the community, with access to children but with no reported offences or other incidents warranting external intervention or investigation. I am also mindful (and accepting of) the opinion of both medical experts that an offender’s advancing age is associated with lower rates of recidivism and that rates of sexual recidivism drop significantly after offenders reach the age of 50, reducing even further after they reach the age of 60.

(Emphasis added.)

[38]    In the next paragraph, the Tribunal set out a number of factors from the evidence which it considered tended in the other direction:

As against that, I am also mindful of Dr Ducat’s abovementioned caution about a suggested likelihood (arising from the demeanour of the Applicant as he presented to her) of a deviant sexual interest in pre-pubescent girls at the time of the offences and that further assessment of such interests may be needed to explore this further. I also note that such ongoing assessment of any current inclination towards deviance might be warranted as part of the Applicant’s offence-specific treatment. This is why I have not exclusively categorised the Applicant’s risk of offending as just “low” but have preferred to find that his risk is more accurately assessed as “low-moderate”. In an ultimate sense, it would be safest to categorise of his offending in the exclusively “low” category after he undertook the offence-specific treatment nominated by Dr Ducat.

[39]    In the circumstances, this is sufficient engagement with the representation made.

7    Direction No. 79 made by the Minister under s 499 of the Migration Act sets out the considerations that the Tribunal was obliged to have regard to in making the original decision not to revoke the visa cancellation. In asserting error on the part of the primary judge, the appellant contends that he clearly articulated a submission that his physical health was both a relevant and a separate consideration on two issues. The dominant and primary issue to which the submissions regarding his physical health were directed were as part of the impediments he would face if returned to Scotland, being a matter which the Tribunal was obliged to consider as an “other consideration” under Direction No. 79. No complaint is now made in that regard. However, the appellant asserts that the submission as to his physical health was also made with respect to the issue of “[p]rotection of the Australian community from criminal or other serious conduct”, being a primary consideration set out in Direction No. 79.

8    The appellant relies upon certain parts of the material that was before the Tribunal to establish that his physical health was a relevant and separate claim, starting with claims directed to the health-based impediments he would face if he was returned to Scotland. He submits that this was subsequently so clearly developed as to entail a claim that this also reduced his risk of reoffending in Australia. He submits that this claim was of such significance to the primary consideration of protection of the Australian community, that it was required to be given separate and explicit consideration by the Tribunal, rather than be left to what was asserted to be an unsound inference process on the part of the primary judge.

9    The appellant’s argument was developed as follows:

(1)    In his revised statement of facts, issues and contentions before the Tribunal (furnished after he had obtained representation by counsel for the Tribunal hearing) at [2], he overtly continued to rely upon submissions made on his behalf before the Minister’s delegate.

(2)    Those several prior submissions made to the delegate asserted that:

(a)    he was “physically frail, having been diagnosed with pulmonary fibrosis and enjoying only 50% lung capacity at present” and that “a return to Scotland would likely exacerbate all of his medical conditions due to the very cold winters”;

(b)    his offending was during a confined period of years between 1982 and 1990, and while this could not be excused, 28 years had passed during which there had been no reoffending;

(c)    medical reports from his treating doctor established the seriousness of his medical condition and the risks he faced if returned to Scotland without contacts with health officials, hospitals or doctors, or emotional or family support;

(d)    the sentencing judge had described him as “a different person to that who so badly offended against these children”, identifying him as a 65-year-old man of poor health; and

(e)    in addition to the low risk presented by his personal circumstances and period of good conduct, and the fact that the sentencing judge had noted that, at 65, his physical health was poor and he had terminal lung disease with limited life expectancy which should be taken into account, his health was deteriorating, and “his physical frailty and stable personal circumstances together make his risk of offending low”.

(3)    In his original statement of facts, issues and contentions before the Tribunal, prepared before he had legal representation, he had focused on his various lung conditions being “exacerbated by being deported to a colder climate in Scotland” and relied upon the delegate acknowledging that his health was “likely to decline substantially” if he was removed to the United Kingdom. However, once he was legally represented, his revised statement of facts, issues and contentions before the Tribunal not only revisited and detailed his medical condition by reference to an updated medical report, describing that condition as advanced and terminal, but also made that part of his case in relation to protection of the Australian community.

(4)    The appellant relies upon key parts of two psychologists’ reports before the Tribunal, especially that of Dr Ducat at [12], [23] and most of [34]-[47], of which he contends that [40], [46] and [47] were not separately and expressly referred to by the Tribunal with respect to his physical health. Dr Ducat made only general references to his physical health. The appellant characterises these as being directed to his age and the general health of someone of his age, and not concerned with his specific health problems. The appellant’s case is that neither psychologist’s report was directed to his particular illnesses.

10    The appellant submits that by reason of the Tribunal not reproducing and expressly considering parts of Dr Ducat’s report that make express, although oblique and general, references to his health condition; and by reason of the Tribunal referring only to parts of that report that did not refer to his health condition but rather to more generalised age-related factors, there was:

(1)    a failure on the part of the Tribunal to take his specific health-related aspects of diminished risk of further offending into account; and

(2)    error on the part of the primary judge in inferring that his medical condition as a basis for a reduced risk of reoffending had been sufficiently taken into account by the Tribunal’s limited reference to those reports, and to Dr Ducat’s report in particular.

11    There are a number of problems with this submission. First and foremost, the nature and extent of the claim made in the revised statement of facts, issues and contentions before the Tribunal about the appellant’s specific health-related aspects of a diminished risk of further offending is overstated. The part of that revised statement that is apparently relied upon in this regard is [27]-[37] under the heading of “The protection of the Australian community”. Nowhere in those paragraphs is the separate and specific claim now relied upon clearly articulated, as opposed to being required to be teased out of indirect references, including in particular the last sentence of [47] of Dr Ducat’s report upon which considerable reliance is placed by the appellant. That sentence reads: “He is now in his mid-60s, with significant health concerns and reduced libido, all of which serve to further reduce his risk”. This sentence falls well short of being, or being akin to, “a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked, which if accepted would or could be dispositive of the decision”: Navoto at [85]. It was at most an additional reason embedded in Dr Ducat’s conclusion that there was a low to moderate risk of reoffending, which was elevated beyond merely a low risk due to the need for offence-specific treatment.

12    The ultimate submission on the topic of the risk to the Australian community is made in the final paragraph of that part of the appellant’s revised statement before the Tribunal (at [37]). However, compared to the last sentence of [47] of Dr Ducat’s report (quoted above), this paragraph gives the appellant’s health aspect even less prominence on the issue of the risk of reoffending:

There is no evidence before the Tribunal of an unacceptable risk of reoffending. The suggestion that the Applicant might suddenly resume offending, after three decades of good conduct and despite profound improvements in his emotional and social wellbeing, a sustained shift in his drinking habits, the best evidence of treating medical professionals, increasingly poor health and indeed, the prospect of death and now, the knowledge that any further offending would almost inevitably lead to his deportation, is fanciful. This consideration weighs in favour of revoking the cancellation of the Applicant’s visa.

It is difficult to sustain a claim of jurisdictional error in failing to treat a claim with greater prominence than the way in which it was in fact ultimately advanced.

13    Given the conceded lack of express evidence of what impact the appellant’s health condition would have on his propensity to offend, it is not surprising, let alone troubling, that the Tribunal did not take this any further on the issue of recidivism. It needs to be remembered that Direction No. 79 provided binding guidance to the Tribunal as follows under the heading “Principles” in [6.3] (emphasis added):

(3)    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4)    In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

14    In that context, and given the express reference to [6.3(3)-(4)] of Direction No. 79 by the Tribunal (at [49]-[50]) and the application of those principles (at [87]-[88]) in finding that any risk of reoffending was unacceptable and therefore weighed heavily against revocation, it is not possible to see that any material difference could have been made by duplicating those references in the risk of reoffending part of the Tribunal’s reasons. The finding was made by the Tribunal that the risk of reoffending was low to medium, with it remaining above low because of the appellant’s attitude to his offending addressed by Dr Ducat so as to necessitate further assessment and possible treatment. The Tribunal preferred this to the more benign stance advanced by the other psychologist, Mr Cummins, finding that the appellant’s criminal offending was “of such a serious magnitude that any risk of similar conduct in the future is unacceptable”. The appellant has not identified any evidence before the Tribunal that his medical condition even substantially lowered his risk profile as found by Dr Ducat, let alone entirely eliminated any risk of reoffending so as to bypass [6.3(4)] in Direction No. 79 (reproduced in the preceding paragraph), and applied by the Tribunal. In all probability, certainty in that regard was going to be hard to come by, even allowing for the appellant’s serious medical condition.

15    The proper task of judicial review is to consider whether the Tribunal fell short of what was reasonably required to discharge the jurisdictional task of considering the claims made, while being careful not to cross the line into merits review. The Tribunal’s reasons at [82], referred to but not quoted by the primary judge, and [83] of the Tribunal’s reasons quoted by her Honour in full (at [37], reproduced above), contain references to considering all of the two psychologists’ evidence (being Dr Ducat’s report only, as she was not called to give evidence, and Mr Cummin’s report and oral evidence). The Tribunal’s reasons at [82] commence by stating “I have had regard to the totality of the evidence of Mr Cummins and Dr Ducat”. That is not a hollow incantation, given the detailed consideration given to both reports, necessarily falling short of addressing every detail or quoting every paragraph. There is no reason not to take the Tribunal member at his word. Thus the entirety of Dr Ducat’s report was considered, not just the paragraphs that were expressly quoted or referred to, including those now emphasised. No more was required.

16    In context, it is clear that the Tribunal had sufficiently taken the appellant’s specific health-related diminished risk of further offending into account, having regard to the way in which this aspect of his claims were advanced, so as not to fall into jurisdictional error. The primary judge did not fall into error by inferring that was so.

17    As the appellant has not made good his sole ground of appeal, either as to error on the part of primary judge, or even antecedent error on the part of the Tribunal, the appeal must be dismissed with costs.

Associate:

Dated:    11 December 2020