FEDERAL COURT OF AUSTRALIA

Milne v Minister for Immigration and Citizenship [2010] FCA 495

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the first respondent’s costs of the proceeding.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

The nature and history of the proceeding

1                     The applicant in this proceeding seeks to set aside a decision of the Administrative Appeals Tribunal (“the Tribunal”), made on 18 May 2009 and designated as Milne and Minister for Immigration and Citizenship [2009] AATA 360.  The Tribunal affirmed a decision of a delegate of the respondent, the Minister for Immigration and Citizenship (“the Minister”) to cancel the applicant’s Class BF Transitional (Permanent) Visa, pursuant to s 501(2) of the Migration Act 1958 (Cth) (“the Migration Act”), on the ground that the applicant did not pass the character test.  In making its decision, the Tribunal was required by s 499 of the Migration Act to apply the direction of the Minister known as “Direction - Visa Refusal and Cancellation under section 501 - No.21” (“Direction No. 21”).

2                     Counsel for the applicant relied on three grounds.  One was that the Tribunal had failed to apply Direction No. 21 when the Tribunal dealt with the issue of the relevance of general deterrence to the cancellation of the applicant’s visa.  Another was that the Tribunal denied the applicant procedural fairness by relying heavily on the applicant’s lack of rehabilitation as an offender, without informing him that it proposed to place such reliance on that factor, and without adjourning the hearing of the application before the Tribunal to allow the applicant to obtain evidence in relation to rehabilitation.  The last ground was that the Tribunal misdirected itself in law by saying that considerations other than those designated by Direction No. 21 as primary considerations must be given lesser weight than the primary considerations. 

3                     The applicant is a citizen of the United Kingdom.  He has resided in Australia since 1970.  On 11 May 2005, in the County Court of Victoria, he pleaded guilty to one count of incest, two counts of sexual penetration of a child under the age of 16 and 16 counts of indecent acts with or in the presence of a child under the age of 16.  The offences occurred between May 2001 and May 2004, and involved a granddaughter of the applicant, as well as the granddaughter’s friends and children of family friends, all of whom were aged between 7 and 11.  The applicant was sentenced effectively to seven years’ imprisonment with a minimum of five years to be served before release on parole.  His earliest release date was to be 1 May 2010. 

4                     Solicitors acting on behalf of the applicant commenced this proceeding on 22 June 2009, by filing a notice of appeal, as if the proceeding were an ordinary appeal on a question of law from the Tribunal, pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).  The only named respondent was the Minister.  After the Court had drawn the attention of the solicitors to certain provisions of the Migration Act, an order was made by consent adjourning the first directions hearing.  Subsequently, on 25 September 2009, further orders were made by consent.  Leave was granted to the applicant to file an application pursuant to s 476A(1)(b) of the Migration Act.  An extension of time was granted pursuant to s 477A(2) of the Migration Act, to enable him to do so.  The Tribunal was added as a respondent.  Other directions for the preparation of the proceeding for hearing were also made.  The Tribunal filed a submitting appearance, save as to costs, on 6 October 2009.  The applicant’s amended application was filed on 9 October 2009.

5                     The applicant sought an order in the nature of certiorari to quash the Tribunal decision, a declaration that the decision was invalid, an order in the nature of mandamus, requiring the Tribunal to determine the matter according to law, and costs.  There were seven grounds in the application.  Although the first two grounds were expressed to involve errors of law, each challenged a conclusion of fact by the Tribunal on the basis that the evidence did not exist to justify that conclusion.  At the hearing, counsel for the applicant (who appeared pro bono) applied for and was granted leave to amend the application by removing those two grounds.  The grounds numbered 4 and 5 raised the general deterrence issue.  The grounds numbered 3 and 7 raised the question of procedural fairness in relation to the Tribunal’s finding about rehabilitation of the applicant.  The ground numbered 6 related to the weight to be given to the considerations other than primary considerations. 

The legislation

6                     Section 476A of the Migration Act provides relevantly:

(1)        Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

...

(b)        the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500...

(2)        Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution.

7                     By s 5(1) of the Migration Act, the phrase “migration decision” is defined to mean a privative clause decision, a purported privative clause decision or a non-privative clause decision.  The terms “privative clause decision” and “purported privative clause decision” are defined respectively in ss 474(2) and 5E of the Migration Act.  The former is a decision of an administrative character made, proposed to be made, or required to be made under the Migration Act or any regulation or other instrument made under the Migration Act, other than decisions specified in s 474(4) or specified by regulations under s 474(5).  By s 5E, a purported privative clause decision is a decision that would be a privative clause decision if there were not a failure to exercise jurisdiction or an excess of jurisdiction in the making of the decision.  Section 483 of the Migration Act provides that s 44 of the AAT Act does not apply to privative clause decisions or purported privative clause decisions.  The effect of these provisions in the present case is that the Court has original jurisdiction to deal with an application for mandamus (and for ancillary or consequential relief) in respect of the Tribunal’s decision, which was made pursuant to s 500 of the Migration Act, but can only grant relief if there was jurisdictional error on the part of the Tribunal in making the decision.

8                     Section 501(2) of the Migration Act provides that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test.  By s 501(6)(a), a person does not pass the character test if he or she has a substantial criminal record, as defined by s 501(7).  By s 501(7)(c) and (d), the person has a substantial criminal record if sentenced to a term of imprisonment of 12 months or more, or sentenced to two or more terms of imprisonment, whether on one or more occasions, totalling two years or more.  In the present case, there was no doubt that the applicant did not pass the character test, so that the discretion conferred on the Minister (and exercised in this case by a delegate of the Minister) to cancel the visa was enlivened.

9                     Section 500 of the Migration Act makes detailed provisions for review by the Tribunal of a decision of a delegate of the Minister under s 501.  These provisions include substantial modifications of the normal procedures of the Tribunal, when the Tribunal is reviewing a decision to cancel the visa of a person who is in the migration zone, as the applicant is.  By s 500(6B), an application to the Tribunal for review of the delegate’s decision must be lodged within nine days after the person was notified of the decision.  By s 500(6L), if the Tribunal has not made a decision within 84 days after the day on which the person was notified of the decision under review, the Tribunal is taken, at the end of that period, to have made a decision to affirm the decision under review.  Section 500(6H) requires the Tribunal not to have regard to any information presented orally in support of the case of the person seeking review of a decision to cancel a visa unless the information is set out in a written statement given to the Minister at least two business days before the Tribunal holds a hearing (other than a directions hearing).  Similarly, s 500(6J) requires the Tribunal not to have regard to any document submitted in support of the person’s case unless a copy of the document is given to the Minister at least two business days before the Tribunal holds a hearing (other than a directions hearing).

10                  Section 499(1) of the Migration Act authorises the Minister to give written directions to a person or body having functions or powers under the Migration Act about the performance of those functions or the exercise of those powers.  Section 499(2A) requires compliance with those directions.  Relevantly to the present case, the Minister exercised that power in giving Direction No. 21.  The Tribunal was therefore bound to comply with Direction No. 21.

11                  For the purposes of this case, the relevant provisions of Direction No. 21 are as follows:

PRELIMINARY

This Direction consists of two parts.  Part 1 provides directions on the application of the Character Test.  Non-citizens who are being considered under section 501 must satisfy the decision-maker that they pass the Character Test.  If the non-citizen does not pass the Character Test, decision-makers are to exercise the discretion to consider whether to refuse or cancel a visa, taking into account primary and other considerations.  Part 2 provides directions on what these considerations are and the weight to be given to them.

...

PART 2 - EXERCISING THE DISCRETION

2.1       If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Weight of considerations

2.2       The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa.  In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations.  The primary considerations are set out at paragraphs 2.3 - 2.16 and other considerations are set out at paragraphs 2.17 - 2.24.  Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

PRIMARY CONSIDERATIONS

2.3       In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a)        the protection of the Australian community, and members of the community;

(b)        the expectations of the Australian community; and

(c)        in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

Protection of the Australian Community

...

2.5       The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:

(a)        the seriousness and nature of the conduct;

(b)        the likelihood that the conduct may be repeated (including any risk of recidivism); and

(c)        whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).

...

b.         likelihood that the conduct may be repeated (including any risk of recidivism)

2.10      It is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism.  In particular, the following factors will be relevant to the assessment:

...

(c)        the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.

c.         general deterrence - the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons

2.11      General deterrence aims to deter other people from committing the same or a similar offence.  While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa.  The general deterrence factor may be relevant in a number of ways:

(a)        the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and

(b)        the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar schemes.

...

OTHER CONSIDERATIONS

2.17      When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant.  It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations.

12                  It should be noted that, although Direction No. 21 was the relevant direction applicable at the time of the Tribunal’s decision, it has since been replaced by another direction, known as Direction No. 41.  This later direction differs from Direction No. 21.  In particular, it does not have some of the provisions of Direction No. 21 relevant to this case.

The Tribunal’s reasons for decision

13                  In the course of considering the protection of the Australian community, the Tribunal said at [21] of its reasons for decision:

On 27 October 2005 the Reporting Officer at HM Prison Ararat told the Department that Mr Milne was prepared to participate in any sexual offender program, but that this had not occurred.  The officer assessed Mr Milne as having a moderate risk of re-offending.  Mr Milne said that he has not attended any rehabilitation or sex offender programs because prison authorities had decided that any such programs should be undertaken after his release on parole.

14                  After discussing the seriousness of the offences at [22], the Tribunal continued at [23]:

On the question of the likelihood that the conduct may be repeated (paragraph 2.10 of the Direction), the Tribunal takes into account that the sentencing Judge noted that a consulting forensic psychiatrist could find no major cognitive deficit or other condition that might have impaired Mr Milne’s judgment or produced sexual disinhibition and inappropriate sexual contact.  The psychiatrist was unable to provide any ready explanation for the misconduct, and considered that any depressive disorder occurred after the offending behaviour became known and Mr Milne’s wife had abandoned him.  The sentencing Judge concluded:

This court has formed the very clear view on the evidence that that [sic] your pattern of offending is paedophilic in nature.  It has also formed the clear view, given the pattern of your past offending, that without treatment, at least in the appropriate circumstances, you would [be] likely to further offend against children.

15                  At [24], the Tribunal discussed comments of the applicant, made in 2005, by which he sought to minimise his culpability in respect of the offences to which he had pleaded guilty.  The Tribunal concluded:

Mr Milne’s comments demonstrate that he has not gained insight into the nature and consequences of his offending.  He has not completed a sexual offender program or any meaningful rehabilitation or treatment.

16                  The Tribunal then continued:

[25.]     The Tribunal finds that Mr Milne’s criminal history over a three-year period, together with a lack of medical evidence that he was suffering from any diagnosed condition, support the conclusion that Mr Milne remains at a considerable risk of re-offending.  His wife was unable to detect or prevent the offending behaviour, even though she lived with Mr Milne and was close to him.  Ms Wheeler, in whose care Mr Milne will be released in May 2010, has doubts about the extent of his offending and sees no need for him to be kept away from children.  The suggestion that Mr Milne be accompanied by an adult appears to be concerned more with Mr Milne’s safety than any concerns for the welfare of the public.  This has serious potential consequences for the protection of the Australian community, particularly young children who are especially vulnerable.

[26.]     On the question of general deterrence (paragraph 2.11 of the Direction) the Tribunal finds that cancellation of Mr Milne’s visa may prevent or discourage similar conduct by other persons.

[27.]     In all the circumstances the Tribunal is satisfied that, if Mr Milne’s visa is not cancelled, the community would be not protected from further offending by him.  Therefore in respect of the first primary consideration the Tribunal finds strongly in favour of cancellation of the visa.

17                  The Tribunal then proceeded to deal with the expectations of the Australian community.  At [30], the Tribunal said:

Although Mr Milne had no prior convictions at the time of the offences, and the Australian community would expect that he should be given an opportunity to change his behaviour, Mr Milne has not shown an ability and genuine desire to do so.  The Tribunal is satisfied that, although Mr Milne has spent most of his adult life in Australia, the community would expect that the perpetrator of such repugnant crimes, who is assessed as being at some risk of re-offending and who shows little evidence of stable and lasting rehabilitation, would have his or her visa cancelled in the absence of genuine remorse and medical or other reasonable explanation for the offending.  Therefore in respect of the second primary consideration the Tribunal finds strongly in favour of cancellation [sic] the visa.

18                  The Tribunal then discussed the consideration of the best interests of a child or children, concluding at [32] that this primary consideration had “minimal practical relevance” to the case with which it was dealing.

19                  The Tribunal then turned its attention to other considerations.  It expressed its conclusion on these considerations at [38]:

The Tribunal takes into account that Mr Milne has lived in Australia as the holder of a permanent visa since 1970 and the compassionate circumstances involving any decision requiring him to return to the United Kingdom, which would cause severe disruption to his lifestyle and deprive him of the support of his daughter and other family members in Australia.  Whether he will reconcile with his wife is not certain, although she seems to desire to maintain the marriage.  The Tribunal accepts that family members in the United Kingdom might not be in a position to assist, however Mr Milne would have access to the public health and welfare system in the United Kingdom.  Although there is no evidence of rehabilitation or treatment, the Tribunal takes into account that his conduct in gaol has been good.  On balance, in respect of the secondary considerations, the Tribunal finds against the cancellation of the visa.

20                  The Tribunal then asked itself the question “SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?”  At [39], it said:

The Tribunal accepts that to re-establish himself in his country of origin in unfamiliar circumstances after a long absence would be extremely difficult for Mr Milne at his age and with his health issues.  However, in weighing up all the circumstances of the primary considerations and then the secondary considerations (which must be given lesser weight than the primary considerations), the Tribunal concludes, for the reasons given, that the factors in favour of cancellation of the visa outweigh the factors against cancellation, and the discretion to cancel the visa should be exercised.

General Deterrence

21                  Counsel for the applicant contended that the Tribunal had failed to take into account the factor of general deterrence, as required by cl 2.11 of Direction No. 21.  He described the Tribunal’s brief reference to general deterrence, at [26] of its reasons for decision, as arbitrary and inconclusive, lacking in reasoning and failing to identify evidence to support any finding.  He said that the Tribunal had failed to reach a conclusion as to whether, and to what extent, general deterrence was relevant to the circumstances of the applicant’s case. 

22                  Counsel for the applicant relied on the judgment of the Full Court in Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140 at [52], where the Full Court said:

It can be accepted that in virtually all cases there would be at least one person other than the visa holder who will learn of a cancellation, so that, at least theoretically, general deterrence will always have some role, even if a miniscule one.  We do not think, however, that a bland statement that as a matter of conceptual analysis, general deterrence must always tell in favour of cancellation, without any reference to how and to what extent it does so on the facts of the particular case, meets the requirements of paras 2.5(c) and 2.11 of Direction 21 set out earlier.  Paragraph 2.11 states that general deterrence “may be relevant in a number of ways” and requires a decision-maker to consider and identify whether, and if so, the way in which, it is relevant on the facts of the particular case.

23                  Counsel for the applicant submitted that the Tribunal failed to consider and identify the way in which general deterrence is relevant on the facts of this case. 

24                  Clause 2.11 of Direction No. 21 itself provides guidance on the ways in which general deterrence might be relevant.  Although it refers to the possibility that general deterrence “may be relevant in a number of ways”, the clause suggests only two.  Subclause (a) suggests relevance by way of the nature of the offence.  Subclause (b) suggests a more specific relevance.  It contemplates that, where the visa-holder has been engaged in a criminal scheme, visa cancellation may discourage or prevent others from engaging in similar schemes.  There are no doubt cases in which general deterrence may be relevant, or irrelevant, in specific ways.  For instance, there might be evidence that the nature of an offence is such that those who commit it are driven to do so by factors that would compel them to act regardless of the consequences.  An offence might be committed in circumstances that are so unusual that it is unlikely that they would be replicated, and that general deterrence would therefore have no weight as a factor.  Alternatively, a visa-holder might have been engaged in criminal conduct with other visa-holders, or have been a member of a community of visa-holders in which criminal conduct was prevalent.  In such cases, the deterrent effect of cancellation of the visa might have much greater potential significance. 

25                  In the present case, there was no evidence at all on which the Tribunal could draw to make a finding of such specificity about the effect of general deterrence as a factor.  In written submissions to the Tribunal, the Minister’s representative had said:

The offences committed by the applicant are obviously ones that the government wishes to deter others from committing.  While it may be inferred that cancellation of the applicant’s visa may deter other non-citizens from committing the same or similar crimes, there is little evidence to prove that deterrent effect.  We consider that minimal weight should be given to this consideration.

26                  In oral submissions, the Minister’s representative told the Tribunal:

The last aspect of this primary consideration is general deterrence.  It might be reasonably inferred that, like the sentence imposed on Mr Milne, that [sic] cancellation of his visa would act as a general deterrent.  I realise that there’s little evidence before the tribunal of how that might operate, but I would submit that it could reasonably be inferred that cancellation would act as a general deterrent to other non-citizens who might contemplate criminal activities.

27                  In the circumstances, the Tribunal did not have to weigh competing evidence or balance competing considerations in dealing with the factor of general deterrence.  It is difficult to see how the Tribunal could have done more than it did in [26] of its reasons for decision.  The Tribunal at least made clear that its finding was based on subcl (a) of cl 2.11, not on subcl (b).  The Tribunal had chosen one of the ways in which Direction No. 21 suggested that general deterrence might be relevant. 

28                  Lafu was a very different case.  As appears from [36] of the Full Court’s reasons for judgment, in that case, the Tribunal had said that it was “also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons”.  The Tribunal then said that the deterrent effect of a particular decision “is impossible to prove in advance.”  It expressed the view that the inclusion of general deterrence as a factor in Direction No. 21 “may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results.”  The Tribunal expressed the view that the prospect of visa cancellation would operate to deter similar conduct in much the same way as the threat of punishment does.  After a reference to a remark of Callinan J in Al-Kateb v Godwin [2004] HCA 37 (2004) 219 CLR 562 at [291], to the effect that deterrence may be unrelated to criminal sanction, but could be a result of the law of tort, the Tribunal then expressed the view that, “While general deterrence cannot be a decisive, or even a substantial, factor in the exercise of the discretion, it is a factor that must be taken into account.”

29                  It is clear that, in Lafu, the Full Court was dealing with a case in which the Tribunal had not come to any conclusion at all about the impact of general deterrence, other than that it was required to take general deterrence into account as a factor.  At [49], the Full Court said that the Tribunal’s reasons in that case:

do not show an active intellectual engagement with the question how the factor or consideration of general deterrence was taken into account, and therefore whether it was taken into account at all, in the exercise of a discretion to cancel.  Mr Lafu would be left to guess what role, if any, the issue of general deterrence had played.

The Full Court then referred to the fact that Mr Lafu had expressly submitted that cancellation of his visa would have no deterrent value.  It was in this context that the Full Court was critical of “a bland statement” that “general deterrence must always tell in favour of cancellation, without any reference to how and to what extent it does so on the facts of the particular case”.

30                  In the present case, there was not a bland statement about general deterrence, of the kind to which the Full Court in Lafu referred.  The Tribunal did express itself as favouring the view that cancellation of the applicant’s visa “may prevent or discourage similar conduct by other persons.”  Subject to the operation of s 500(6H) and (6J) of the Migration Act, it was open to the applicant to provide the Tribunal with any evidence he wished to rely on in relation to general deterrence.  The applicant had not availed himself of this opportunity.  Having regard to the nature of the applicant’s offences, the lack of evidence about the issue of deterrence, and the scant submissions that were made, it is difficult to see that the Tribunal could have done anything other than to come to the conclusion that it reached. 

31                  It must also be remembered that general deterrence is the last in a list of factors that the Tribunal was to consider in forming a view as to the primary consideration of the protection of the Australian community.  On the facts of the particular case, any finding on it was largely inconsequential to the conclusion the Tribunal would reach about the primary consideration.  General deterrence is also a slippery concept.  Any view about its effectiveness tends to be visceral, rather than intellectual.  Although it had power to inform itself on any matter in such manner as it thought appropriate, pursuant to s 33(1)(c) of the AAT Act, the Tribunal could not have been expected to engage in a review of the studies on the effectiveness of various forms of penalty by way of general deterrence, whether in relation to specific offences or offences generally.

32                  Even if it could be said that the Tribunal should have dealt with the issue of general deterrence more fully, it is hard to see how this could be characterised as jurisdictional error.  The Tribunal did take the factor into account, as required by cl 2.11 of Direction No. 21.  For it to have done so inadequately does not necessarily amount to jurisdictional error.  Any factual conclusion about the issue is a matter for the Tribunal only, and not a matter on which the Court can interfere.

Procedural fairness and the issue of rehabilitation

33                  Counsel for the applicant argued that the Tribunal denied the applicant procedural fairness by failing to advise him that it proposed to make a finding adverse to him about the fact that the applicant had not undertaken any rehabilitation program, and giving the applicant an opportunity to provide further material, and to make submissions, in relation to this proposed finding.  The argument involved the proposition that the Tribunal had made the lack of any rehabilitation course a “key basis” of its reasoning and used it against the applicant in a way that he could not have foreseen.

34                  The applicant told the Tribunal that he had been told by the Parole Board that he did not have to transfer to another prison to do a sex offenders’ course, but that he would be offered a short course once he was released.  In her evidence to the Tribunal, the applicant’s daughter explained that, because of the need to transfer to another prison, the question of rehabilitation while in prison was out of the control of the applicant and that he could do a course after he was released on parole.  At [21] of its reasons for decision, the Tribunal summarised this evidence in terms that the applicant had said that he had not attended any rehabilitation or sex offender programs because prison authorities had decided that any such programs should be undertaken after his release on parole.

35                  At [24] of its reasons for decision, the Tribunal made a finding that the applicant “has not completed a sexual offender program or any meaningful rehabilitation or treatment.”  This was a simple finding of fact, based on the evidence of the applicant himself, and of his daughter on his behalf.  The finding was made in the context of the Tribunal’s reasoning on the primary consideration of the protection of the Australian community.  It followed the Tribunal’s findings on the seriousness of the applicant’s offences, the likelihood of a repetition of similar conduct in the absence of treatment, and the applicant’s failure to gain insight into the nature and consequences of his offending.  The Tribunal then returned to the likelihood of the applicant reoffending, and mentioned general deterrence, before reaching its conclusion that the first primary consideration was strongly in favour of cancellation of the visa.  The Tribunal returned briefly to the issue of rehabilitation in discussing the second primary consideration, the expectations of the Australian community.  At [30], the Tribunal made a finding that the community would expect that the perpetrator of “such repugnant crimes, who is assessed as being at some risk of re-offending and who shows little evidence of stable and lasting rehabilitation, would have his or her visa cancelled in the absence of genuine remorse and medical or other reasonable explanation for the offending.”  It was this reasoning that led to the Tribunal’s conclusion that the second primary consideration was strongly in favour of cancellation of the visa. 

36                  For several reasons, the argument put on behalf of the applicant cannot be accepted.  In the first place, the Tribunal was bound to deal with the issue of rehabilitation.  Clause 2.10(c) of Direction No. 21 lists as one of the factors relevant to the primary consideration of the protection of the Australian community, in the context of the likelihood of repeat conduct, the extent of rehabilitation already received and the prospect of further rehabilitation.  Thus, the applicant had the means of knowing of the relevance of rehabilitation as an issue prior to the Tribunal hearing.  If he failed to ascertain the criteria by reference to which his application for review of the cancellation of his visa would be determined, by obtaining access to Direction No. 21 and heeding its contents, he could not be heard to complain.  Further, the Tribunal referred to the fact that the judge who had sentenced the applicant had ordered that he do a sex offenders’ course.  The Tribunal sought confirmation of its understanding that the applicant had not done such a course.  It was in response to this question that the applicant told the Tribunal about the Parole Board’s decision that he did not have to transfer to another prison to do the course but could do such a course after release.  The Tribunal then advised the applicant:

One of the issues that I have to consider is the protection of the Australian community when people are found guilty of serious criminal matters, and that includes a consideration of the likelihood of re-offending.

This statement gave the applicant the opportunity to convince the Tribunal, if he was able to do so, that he was keen to do a rehabilitation course and would certainly do one as soon as he possibly could.  He did not take that opportunity.  Instead, he gave evidence minimising his culpability, on which the Tribunal no doubt relied in finding that he had not gained insight into the nature and consequences of his offending. 

37                  It was therefore obvious, both from the requirements of Direction No. 21 and from the course that the Tribunal hearing had taken, that the fact that the applicant had not done a rehabilitation course was a matter that the Tribunal would take into account in relation to its findings.  It was up to the applicant, if he was able to do so, to minimise the impact of that fact.  By her evidence in cross-examination, his daughter attempted to do just that. 

38                  The conclusion of the Tribunal about rehabilitation was one “obviously...open on the known material”, if the reasoning in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591 were to be applied (but see the criticism of that reasoning by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 (2006) 228 CLR 152 at [29]-[31]).  The Tribunal was required to make some finding about the issue.  It did so.  To the extent to which that finding was adverse to the applicant, it was in accordance with his own evidence.  He said he had not done a rehabilitation course, and the Tribunal so found.  The Tribunal did not make any finding at all on whether the applicant would undertake such a course in the future.  If the applicant had given evidence of his intention to do so, the Tribunal might have been called upon to make such a finding.  The applicant did not give this evidence.  The Tribunal therefore did not make any finding, either favourable or unfavourable to the applicant, about the issue.  The applicant cannot complain of the failure to make a finding in his favour when he did not provide the evidence that would have equipped the Tribunal to do so.  He had the opportunity to provide that evidence.  The Tribunal was not obliged to draw the issue to his attention and to give him a further opportunity. 

39                  The second reason for rejecting the applicant’s argument that he was denied procedural fairness on the rehabilitation issue concerns the constraints under which the Tribunal was acting in reviewing the decision to cancel the applicant’s visa.  In such a case, the effect of s 500(6H) of the Migration Act was to confine the information that the applicant presented to the Tribunal to information set out in writing and given to the Minister at least two business days before the beginning of the Tribunal hearing.  The effect of s 500(6J) was that the applicant could not rely on any document unless he had given a copy of that document to the Minister at least two business days before the Tribunal hearing.  There would have been no point in the Tribunal adjourning the hearing of the applicant’s case to enable him to deal with the issue of rehabilitation by providing further information or further documents.  The Tribunal could not have received that further information or those further documents.  Further, the effect of s 500(6L) of the Migration Act was to require the Tribunal to give its decision on the review of the decision to cancel the applicant’s visa within 84 days after which the applicant was notified of the original decision.  If the Tribunal failed to make a decision in favour of the applicant within that period, the Tribunal would have been deemed to have made a decision to affirm the decision cancelling the visa.  The original decision of the Minister’s delegate to cancel the applicant’s visa was made on 12 March 2009.  The applicant received notice of that decision on 16 March 2009.  His application to the Tribunal for review of that decision was lodged on 24 March 2009, within the nine-day period for lodging such an application specified in s 500(6B) of the Migration Act.  The last day on which the Tribunal could have made a decision was 8 June 2009.  The Tribunal’s hearing was on 14 May 2009 and its decision was given on 18 May 2009.  Any adjournment of the hearing could only have been for a very brief period.  The Tribunal could not have adjourned the hearing, and thereby delayed its decision, until the applicant’s release on parole, to see if he actually attended a rehabilitation course during the period of his release on parole.  By that time, s 500(6L) of the Migration Act would have operated, and the applicant would have lost his case in any event. 

40                  The history and purpose of the provisions in s 500(6H) and (6J) of the Migration Act were explained by the Full Court in Goldie v Minister for Immigration & Multicultural Affairs [2001] FCA 1318 (2001) 111 FCR 378 at [25]-[26] per Gray J, with whom R D Nicholson and Stone JJ agreed, in the following terms:

The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J).  These subsections impose serious restrictions on an applicant for review.  The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant’s case unless the Minister has had two business days’ notice of the information or the document before the hearing.  The purpose of these drastic provisions is apparent.  The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing.  The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put.  If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced.  That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth).  The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test.  Crucial to the scheme is the 84 day time limit for the whole process, laid down in subs (6L).

It is plain that the scheme is designed to disadvantage an applicant for review.  Subsections (6H) and (6J) are not counterbalanced by any express obligation on the Minister to disclose the entire case against the applicant prior to the hearing.  The purpose of subss (6H) and (6J) can only be to advantage the Minister at the hearing.

These provisions are binding on the Tribunal.  The Tribunal cannot put them to one side, whether it wishes to do so to meet what it perceives to be the justice of a particular case, or for any other reason.  A person seeking review of a decision to cancel a visa in the application of the character test needs to prepare his or her case carefully, to ensure that all the information on which he or she wishes to rely is given to the Minister at least two business days before the Tribunal’s hearing.  The Tribunal cannot allow such a person to rely on additional information, produced afterwards.  A failure to comply with s 500(6H) or (6J) would arguably amount to jurisdictional error on the part of the Tribunal.  A failure to give a decision within the time limit laid down in s 500(6L) would simply produce the automatic result that the visa would remain cancelled.

41                  The third reason for holding that the Tribunal did not deny the applicant procedural fairness in relation to the rehabilitation issue is that the applicant has not put before the Court any material as to what he would or might have said to the Tribunal if the Tribunal had drawn to his attention the possibility of an adverse conclusion about the issue.  Quite apart from the statutory restrictions on the applicant’s right to place information and documents before the Tribunal, the applicant did not tell the Court that he had anything more that he could have advanced to the Tribunal about the question than he in fact advanced.  If, for instance, the applicant had wished to tell the Tribunal of his keenness to do a rehabilitation course, he has not put before the Court any evidence of his desire to do so. 

42                  The argument put by counsel for the applicant that rehabilitation was a “key basis” of the Tribunal’s reasoning also requires that the issue be looked at in its context.  In the terms of Direction No. 21, cl 2.10 made rehabilitation one of three particular factors relevant to the assessment of the likelihood that the conduct may be repeated.  In turn, the likelihood that the conduct may be repeated formed one of three elements of the primary consideration of the protection of the Australian community.  That primary consideration was one of three primary considerations, which were to be weighed with the other considerations in the making of a decision.  In the Tribunal’s consideration of the likelihood of the repetition of the applicant’s conduct, the Tribunal clearly placed most weight on the remarks of the sentencing judge, the applicant’s own attempts to minimise his culpability, the medical evidence and the circumstances in which the offences were committed.  The applicant’s failure to complete a sexual offender program or any meaningful rehabilitation or treatment was one sentence in three paragraphs of the Tribunal’s reasons.  It was unlikely to have been the issue upon which the Tribunal’s view about the likelihood of repeat conduct turned.  Similarly, when the Tribunal was considering the expectations of the Australian community, it made no more than a passing reference to the fact that the applicant showed little evidence of stable and lasting rehabilitation.  It is by no means clear that, had the Tribunal embarked on speculation about whether the applicant would in fact have undergone a rehabilitation program after release, and had made a finding in the applicant’s favour, this would have changed the Tribunal’s view on either of the primary considerations that it found were strongly in favour of cancellation of the applicant’s visa. 

43                  For these reasons, the applicant has failed to show that the Tribunal denied him procedural fairness in relation to the manner in which it dealt with the issue of rehabilitation.

The balancing of considerations

44                  Counsel for the applicant submitted that the Tribunal failed to carry out its duty of balancing the considerations, in accordance with Direction No. 21, because it misdirected itself in law by holding that what it called the secondary considerations “must be given lesser weight than the primary considerations”. 

45                  Clause 2.2 of Direction No. 21 requires a decision-maker to engage in the process of balancing the considerations that Direction No. 21 requires him or her to take into account, in order to arrive at a decision.  Decision-makers are required to “have due regard to the importance placed by the Government on the three primary considerations”, but also to “adopt a balancing process which takes into account all relevant considerations.”  Again, in cl 2.17, in referring to the “OTHER CONSIDERATIONS” (ie. the considerations that are not primary considerations), the decision-maker is instructed that the other considerations would “generally…be given less individual weight than that given to the primary considerations.”  The decision-maker is therefore authorised, but not bound, to give less weight to the other considerations than to the primary considerations.  A decision-maker who acted on the view that he or she was bound to give less weight to the other considerations than to the primary considerations would be in error.  The adoption of such a principle would lead to the result that the decision would always be made according to the primary considerations, because the other considerations would never be allowed to outweigh the effect of the primary considerations.  A true balancing process could result in a decision not to cancel a visa when a slight balance of the primary considerations in favour of cancellation is measured against other considerations pointing strongly against cancellation.  In many cases, the three primary considerations will not all point in the same direction.  The balancing process is not intended to be mechanical.  It is certainly not intended always to produce the result dictated by the preponderance of the primary considerations.  If that were the intention, it would be pointless to instruct the decision-maker to have regard to the other considerations.  For a decision-maker to regard himself or herself as bound to give less weight to the other considerations than to the primary considerations would be a jurisdictional error.  It would mean that the decision-maker would not have discharged his or her statutory function.

46                  The question for the present case is whether the Tribunal did fall into the error of regarding itself as bound to afford less weight to the other considerations than to the primary considerations.  Counsel for the applicant was critical of the Tribunal’s reasons on this point, suggesting that they did not set out any account of the process whereby the Tribunal came to a conclusion on the balancing of the considerations.  This is an unfair criticism.  It involved too narrow a focus on [39] of the Tribunal’s reasons for decision.  In fact, the Tribunal began its balancing process earlier than that.  At [27], the Tribunal expressed the view that the first primary consideration was strongly in favour of cancellation of the visa.  At [30], the Tribunal expressed the same conclusion in relation to the second primary consideration.  At [32], the Tribunal said that the third primary consideration had minimal practical relevance to the applicant’s case.  At [38], the Tribunal concluded that the balance of the other considerations was against the cancellation of the visa.  At that point, the Tribunal had two primary considerations favouring strongly the cancellation of the visa, one primary consideration not affecting the balance, and a balance of other considerations against cancellation.  The Tribunal did not need to say a great deal more in [39] than that the primary considerations outweighed the other considerations.  This is what it said. 

47                  The word “must” in [39] of the Tribunal’s reasons for decision is ambiguous in its context.  It could mean that the Tribunal felt bound as a matter of the application of Direction No. 21 always to give more weight to the primary considerations than to the other considerations.  Alternatively, it could signify that, on the view that the Tribunal took of the circumstances of the individual case, the Tribunal had concluded that it should give less weight to the other considerations than to the primary considerations.  If the ambiguity cannot be resolved in favour of the first of these meanings, then the applicant will have failed to show jurisdictional error on the part of the Tribunal.  To resolve the ambiguity, it is necessary to look elsewhere in the Tribunal’s reasons for decision.  At [5], the Tribunal set out the substance of cl 2.2 of Direction No. 21.  It quoted the requirement to adopt the balancing process, taking into account all relevant considerations.  At [9], the Tribunal paraphrased cl 2.17 of Direction No. 21, stating that “other considerations may be relevant, although they will generally be given less individual weight than that given to the primary considerations.”  At [10], the Tribunal set out the issues before it.  It asked itself the question, “Should the discretion to cancel the visa be exercised?”  It went on to say that this involves the primary considerations and other considerations.

48                  There is no reason to suppose that, when the Tribunal came to consider its conclusion, expressed in [39] of its reasons for decision, the Tribunal had forgotten the requirements of cl 2.2 and cl 2.17 of Direction No. 21.  There is no reason to suppose that it had not heeded the requirement to adopt a balancing process taking into account all relevant considerations, while generally giving less individual weight to other considerations than to primary considerations.  There is no reason to suppose that the Tribunal had arrived at a misunderstanding of its function.  In the circumstances, the word “must” in [39] of the Tribunal’s reasons for decision is to be taken as an expression of the Tribunal’s view that, in the context of the applicant’s case, the Tribunal saw fit to give less weight to the other considerations than to primary considerations.  This accords with the Tribunal’s view that two of the primary considerations, taken individually, favoured strongly the cancellation of the visa, whereas it was a mere balance of the other considerations that weighed against cancellation.

49                  In the circumstances, the applicant has failed to demonstrate that the Tribunal misunderstood its task by regarding itself as bound, as a matter of law, to give the primary considerations greater weight than the other considerations. 

Conclusion

50                  The applicant has failed to establish any ground of jurisdictional error on the part of the Tribunal in dealing with his case.  The application must therefore be dismissed.  No reason was advanced, and none appears from the nature of the case, why the usual principle, that costs follow the event, should not be applied.  The applicant will therefore be ordered to pay the Minister’s costs of the proceeding.

Associate:

Dated:         20 May 2010