FEDERAL COURT OF AUSTRALIA

Oliver v Minister for Immigration and Citizenship [2011] FCA 534

THE COURT ORDERS THAT:

1.    The applicant’s application be dismissed.

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

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

introduction

1    On 5 October 2010, a delegate of the first respondent the Minister for Immigration and Citizenship (“the Minister”), made a decision under s 501(2) of the Migration Act 1958 (Cth) (“the Act”) to cancel the applicant’s (Mr Oliver) Class BL, Sub-Class 851 visa (“the visa”). The delegate determined that because of Mr Oliver’s substantial criminal record, Mr Oliver failed the character test set out in s 501(6) of the Act. The delegate then exercised the discretion to cancel Mr Oliver’s visa.

2    The delegate’s decision was reviewed by a member of the Administrative Appeals Tribunal (“the Tribunal”). Section 500 of the Act gives the Tribunal the power to review a decision of the kind made by the Minister’s delegate. The Tribunal’s reasons for decision were published as Oliver and Minister for Immigration and Citizenship [2010] AATA 1049.

3    A decision made by the Tribunal under s 500 of the Act is a privative clause decision within the meaning of s 474 of the Act. However, in relation to a privative clause decision or a purported privative clause decision made by the Tribunal under s 500 of the Act, the Federal Court is given original jurisdiction in relation to such a decision by s 476A of the Act. In such a case, s 476A(2) provides that this Court’s jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution. In those circumstances, judicial review of a decision of the Tribunal is only available if a jurisdictional error can be made out.

4    What is meant by jurisdictional error was explained by McHugh, Gummow and Hayne J in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] as follows:

It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)

"falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."

"Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law. [footnotes omitted]

5    Mr Oliver contends that the Tribunal’s decision is infected with jurisdictional error and relies on two grounds. The first is that the Tribunal failed to take into account relevant material. The second is that the decision was so unreasonable that no reasonable decision-maker could have made it.

6    For the reasons that follow, I have determined that no jurisdictional error is evinced in relation to either ground of challenge and that accordingly the application must be dismissed.

background

7    Mr Oliver is a citizen of Sri Lanka. He was born in Sri Lanka on 8 January 1967. Mr Oliver first came to Australia on 13 February 1988 and has remained in Australia since that time.

8    On 4 March 2005, Mr Oliver was convicted in the County Court of Victoria in respect of the following offences:

(a)    14 counts of wilfully committing an indecent act with or in the presence of a child under the age of 16;

(b)    5 counts of taking part in an act of sexual penetration with a child under the age of 16.

9    Mr Oliver’s offending occurred between 1992 and 1994. The direct victims of his offending were three children, who are the sons of Mr Oliver’s cousin. Mr Oliver was sentenced to a total effective sentence of imprisonment of 8 years and 7 months, with a non-parole period of 5 years and 9 months. After his conviction, Mr Oliver appealed to the Victorian Court of Appeal. That appeal was unsuccessful.

10    Mr Oliver was granted parole and released on 18 November 2010, when he was immediately taken into immigration detention on the basis that on 5 October 2010, the Minister’s delegate cancelled Mr Oliver’s visa.

11    On 14 December 2010, the Tribunal conducted a hearing, at which Mr Oliver and other witnesses gave oral evidence. At the hearing, Mr Oliver was represented. Each of the parties also tendered documents, including relevantly, a document which was marked “R2” (“the Exhibit”). The Exhibit comprised over 360 pages of documents produced under summons by Victoria Police and documents produced by Ararat Prison.

direction no. 41

12    Section 499 of the Act provides for the Minister to issue directions to a person or body having functions or powers under the Act. Section 499(2A) provides that a person or body must comply with a direction made under s 499.

13    On 15 June 2009, a direction entitled “Direction [no. 41] – Visa refusal and cancellation under s 501” (“the Direction”) came into effect. The Direction was issued by the Minister pursuant to s 499 of the Act. The Direction applies to all decision-makers, including the Tribunal.

14    As both of the grounds upon which Mr Oliver relies depend (at least in part) on a contention that the Tribunal failed to comply with the requirements of the Direction, it is necessary that I explain the purpose and function of the Direction and set out some of the clauses in the Direction which are relevant to a consideration of the case before me.

15    As the Direction states in cl 5.2, the Direction provides direction to decision-makers with respect to performing and exercising powers under s 501 of the Act. Where the holder of a visa has not satisfied the decision-maker that the person has passed the character test, the decision-maker’s discretion to cancel the visa is enlivened and Part B of the Direction gives directions as to how that discretion is to be exercised.

16    In that respect, the Direction identifies “primary considerations” and “other considerations”. Primary considerations must be considered in the exercise of the discretion: cl 10(1). Clause 11 deals with “other considerations”. A non-exhaustive list of “other considerations” is identified and cl 11(1) specifies that “other considerations” may be relevant and, if so, must be considered.

17    The “primary considerations” listed in cl 10(1) of the Direction are as follows:

10.    The primary considerations

(1)    In deciding whether to refuse to grant a person a visa or cancel a person's         visa, the following (the primary considerations) are to be             considered:

    (a)    the protection of the Australian community from serious                 criminal or other harmful conduct, particularly crimes                 involving violence;

    (b)    whether the person was a minor when they began living in                 Australia;

    (c)    the length of time that the person has been ordinarily resident in             Australia prior to engaging in criminal activity or other                 relevant conduct; and

(d)    relevant international obligations, including but not limited to:

(i)    the best interests of the child, as described in the                 Convention on the Rights of the Child (CROC); and

        (ii)    the non-refoulement obligations contained in the                 Convention and the Protocol Relating to the Status of             Refugees (the Refugees Convention), the International             Covenant on Civil and Political Rights (ICCPR) and             the Convention Against Torture and Other Cruel,                 Inhuman or Degrading Treatment or Punishment (CAT).

18    Further guidance is given as to the application of cl 10(1)(a). That paragraph deals with the protection of the Australian community. Clause 10.1 is headed “Protection of the Australian community” and in subclause (2) provides:

The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:

(a)    the seriousness and nature of the relevant conduct; and

(b)    the risk that the conduct may be repeated.

19    Further directions are given in relation to the two factors specified in cl 10.1(2). As to the “risk that the conduct may be repeated”, further directions are given in cl 10.1.2. In particular, Mr Oliver’s contention relies upon cl 10.1.2(2)(b) which is as follows:

(2)     The following factors are to be considered as particularly relevant to this assessment:

(a) …

(b)     evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment;

(c) …

20    Although in his outline of submission, Mr Oliver also relied on cl 10.1.1(4)(a), reliance on that clause was correctly not pressed at the hearing because the clause is not relevant to the issues I need to determine.

ALLEGED failure to take account relevant material

21    Mr Oliver contends that the Tribunal failed to take into account all of the prison records which form part of the Exhibit. It is contended that by failing to take that material into account, the Tribunal’s assessment of Mr Oliver’s risk of recidivism was flawed.

22    Mr Oliver contends that the prison records are “sources of authoritative information or assessment” within the meaning of cl 10.1.2(2)(b) of the Direction and by reason of that clause was material that had to be considered by the Tribunal. Mr Oliver contends that the Court should infer that four documents contained in the prison records which form part of the Exhibit were not considered by the Tribunal.

23    The first document is found at page 150 of the Exhibit and relevantly states:

Blair has been statically assessed as Moderate-Low and will not be required to participate in the Prison Based Group SOP, and will be environmentally managed when released on parole if granted.

24    That document is dated 13 May 2009. Its reference to “SOP” appears to be a reference to the Sexual Offenders Program.

25    The next document is to be found on page 159 of the Exhibit. It is dated 8 August 2010 and under a heading “Progress on Strategies” says:

Willing to attend all programs as required of him. Is not required to participate in SOP program whilst in custody. Blair will be environmentally managed through CCS upon release.

26    The next document is found on page 184 of the Exhibit. It is a document dated 21 May 2009 and relates to a meeting between Mr Oliver and Corrections Victoria. A passage contained within it upon which Mr Oliver relies is in the following terms:

Confirmed he is statically assessed as Mod-Low risk & therefore will not be required for Prison Based SOP treatment.

27    The final document relied upon appears at page 233 of the Exhibit in a document titled “Progress Report” and dated 1 June 2006. The passage relied upon in the summary of that document is as follows:

7.     Tier one assessed – rated as low level of risk/need. Recommended for further assessment for participation in the Sex Offender Treatment program, once appeal is finalised.

28    Mr Oliver contends that I should infer that these documents were not considered by the Tribunal from the content of paragraph [50] of the Tribunal’s Reasons for Decision. That paragraph relevantly states as follows:

Prison authorities as part of the screening assessment, assessed the applicant as moderate to low risk. I accept that assessment. It amounts in my view to a finding by relevantly qualified persons that the Australian community is at risk of the applicant re-offending. It is not known what is meant by the case officer recording that the applicant is not required for the sex offender program. The assessment might have been made because of the level of risk against which the applicant has been assessed. The relevant authorities decided, rather than enter into the sex offender program within a matter of weeks prior to release from prison, it was preferable that he be subject to environmental management post release (Exhibit R2, p52).

29    The reference made by the Tribunal in that paragraph is to a document headed “Victorian Intervention Screening Assessment Tool” which dealt with an assessment of Mr Oliver conducted on 6 October 2010. That document appeared at pages 47-61 of the Exhibit. At page 52 of that document under a heading “Case notes” the following was stated:

Mr Oliver has been assessed moderate to low risk on the static 99 and is not required for the Sex Offender Program, rather, he will be subject to environmental management post release.

30    The passage just quoted is the stated source of the observations made by the Tribunal at [50] and the source of the following sentence from that paragraph upon which Mr Oliver particularly relies:

It is not known what is meant by the case officer recording that the applicant is not required for the Sex Offender Program.

31    Mr Oliver contends that this sentence indicates that the prison records had not been properly considered. It is contended that if the prison records had been properly considered, the Tribunal would have known what was meant by the statement contained in the Intervention Screening Assessment Tool that Mr Oliver was not required for the Sex Offender Program.

32    There are many difficulties with this contention.

33    Firstly, whilst the four documents said by Mr Oliver not to have been considered are not expressly referred to in the Reasons for Decision of the Tribunal, it would be wrong to conclude from that fact alone that those documents escaped the attention of the Tribunal. Whether such an inference will be drawn in a particular case will depend upon all of the circumstances of that case: Alexander v Australian Community Pharmacy Authority [2010] FCA 189 at [84]-[87] and Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113 at [93] and [100].

34    The Tribunal’s Reasons for Decision show that extensive consideration was given by the Tribunal to the prison records contained in the Exhibit. References to that Exhibit are made at [34], [36], [41], [42], [44], [47], [49] and [50] of the Reasons for Decision. The extensive reference made to the Exhibit makes it harder to draw the inference that Mr Oliver contends for.

35    More fundamentally, the basis upon which Mr Oliver asks the Court to draw that inference is misapprehended. In the sentence upon which Mr Oliver relies, the Tribunal indicates an uncertainty as to why it had been concluded that Mr Oliver was not required for the Sex Offender Program. If the documents in the Exhibit allegedly not considered, had provided an explanation as to why that was so, the inference may have been available that the Tribunal had not considered those documents. However, the documents within the exhibits which Mr Oliver contends were not considered are somewhat ambiguous as to why Mr Oliver was not required to undertake the Sex Offender Program. The contents of the document referred to at [26] above suggest that this was because Mr Oliver was assessed “Mod-Low risk”. On the other hand, the comment in the document set out at [27] rated Mr Oliver as “low level of risk/need” yet recommended further assessment for participation in the Sex Offender Treatment Program.

36    Another document, at page 185 of the Exhibit is dated 22 March 2005 and relevantly states that Mr Oliver has been assessed as having a “low level of risk and need” and recommends participation in the Sexual Offending Program. It may well be that over the course of time that these various documents cover, the policy for requiring a prisoner to undertake the sexual offenders program has changed. Alternatively, there may be another reason for the contradiction. Be that as it may, the uncertainty expressed by the Tribunal may be a product of the ambiguity raised by the various contradictory comments found in the prison records.

37    I am not persuaded that there is a sufficient basis upon which the Court can infer that the four documents in question were not considered by the Tribunal.

38    For the purposes of dealing with this contention, I have accepted without deciding, that the prison records in question are “sources of authoritative information or assessment” within the meaning of clause 10.1.2(2)(b) of the Direction.

39    Even if I had been of the view that the material that Mr Oliver points to was not considered by the Tribunal, I would not have held that the Tribunal’s decision was infected by jurisdictional error. Clause 10.1.2(2)(b) of the Direction requires the decision-maker to consider “evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation”. There is nothing in the documents pointed to by Mr Oliver which relevantly address those factors in a manner not already addressed by evidence such as that contained in the Intervention Screening Assessment Tool, which the Tribunal clearly did consider. The Tribunal took into account and accepted that Mr Oliver had been assessed as moderate to low risk. It also took into account that Mr Oliver was not required for the Sex Offender Program. Insofar as there was evidence in the documents said not be considered, as to why Mr Oliver was not required to participate in the Sex Offender Program, that evidence did not relevantly say anything of significance in relation to “the extent of rehabilitation already achieved and the prospect of further rehabilitation” for Mr Oliver.

40    Counsel for Mr Oliver contended for the first time, in her reply, that the impugned sentence in [50] of the Reasons for Decision should be understood as the Tribunal suggesting that it was doubtful that Mr Oliver should not be required to undergo the Sex Offender Program. I doubt that the sentence in question should be construed in that manner. In any event, if the Tribunal held that view, Mr Oliver made no submission as to why that amounted to jurisdictional error.

unreasonableness

41    Mr Oliver contended that the Tribunal’s decision was illogical and as such the exercise of the discretion by the Tribunal was so unreasonable that no reasonable Tribunal could have exercised it in such a way.

42    The decision was said to be illogical in the context of the Tribunal accepting that:

(a)    the assessment of Mr Oliver’s risk of re-offending was moderate to low;

(b)    there were no adverse assessment of Mr Oliver while he was in prison;

(c)    Mr Oliver was a registered sex offender and that would reduce the likelihood of him re-offending;

(d)    Mr Oliver had been granted parole;

(e)    there was no evidence that Mr Oliver had breached any court orders, undertakings and conditions in connection with parole and bail;

(f)    Mr Oliver had strong family ties in Australia, namely with his mother and sister;

(g)    all of Mr Oliver’s remaining relatives were now in Australia;

(h)    if Mr Oliver was deported to Sri Lanka he would not have the support he has in Australia and may struggle;

(i)    the separation of Mr Oliver from his elderly mother and sister would cause hardship;

(j)    Mr Oliver will have some language difficulties in Sri Lanka; and

(k)    Mr Oliver may not find it easy to find employment in Sri Lanka.

43    It was further contended for Mr Oliver that the Tribunal had been overly focused on the judicial comments made when Mr Oliver was sentenced and had failed to consider the passage of time when making an assessment of the applicant’s risk of re-offending.

44    For the reasons contended by the Minister, it is incorrect to suggest that the Tribunal did not take into account the passage of time since Mr Oliver was sentenced and his behaviour thereafter. At [20], the Tribunal expressly said that the time elapsed since Mr Oliver’s most recent offences had to be considered. Considerations relating to that topic are dealt with at [21] and [56] of the Tribunal’s Reasons for Decision.

45    The findings made by the Tribunal which favour Mr Oliver and which have been relied upon by him on this application, need to be considered in the context of the findings made by the Tribunal which support the decision to cancel Mr Oliver’s visa. Those findings included the following:

(a)    the offences committed by Mr Oliver were of a particularly serious nature involving a grave breach of trust towards children who were in Mr Oliver’s care;

(b)    the offences committed were revolting and particularly disgusting;

(c)    the conduct was even more deplorable because it involved the abuse of children who were already vulnerable;

(d)    there were no mitigating factors presented to the Tribunal to explain Mr Oliver’s conduct;

(e)    Mr Oliver showed no remorse at the time he was sentenced and had maintained his innocence until 12 February 2010 when he was faced with the prospect of his visa being cancelled;

(f)    despite Mr Oliver having belatedly accepted responsibility for his actions, he fails to appreciate the impact he has had on his victims;

(g)    Mr Oliver’s expression of remorse and admission of the offences is motivated by his own self-interest; and

(h)    by reason of a number of circumstances including in particular the insincerity of Mr Oliver’s admissions, the Tribunal could not be satisfied that Mr Oliver has in fact rehabilitated and remained concerned that he is at risk of re-offending.

46    A summary of the Tribunal’s concerns was given at [55] in the following terms:

I am not satisfied that the applicant has been sufficiently rehabilitated to give me confidence that he will not re-offend. His initial denials of the offences, the excuses that he proffered when protesting his innocence after conviction and his reluctance, at least initially, to enter into a sex offender program does him no credit. His description since living in Australia my conduct and behaviour has been nothing less than exemplary, is a gross misrepresentation, it cannot be taken seriously, it is false, and it causes me to query whether he really does have any insight into the gravity of the offences that he committed. His admissions came 16 years after the offences and within a short time of anticipated release from prison and this review. I doubt the sincerity of his admissions and question his motives. I am not satisfied that he has any true insight into the offences nor does he appreciate the impact his behaviour had on his victims. His previous general conduct satisfies me that there is a risk of him re-offending. Indeed, he has been assessed as moderate to low risk. This indicates that the Australian community is at risk. There is nothing from appropriately qualified persons to otherwise re-assure me.

47    The Tribunal’s conclusion as to the question of whether Mr Oliver presented an unacceptable risk was given at [78] in the following terms:

The purpose of the Act is to regulate those entering and remaining in Australia so as not to expose the Australian community to an unacceptable risk of harm. I accept that the applicant has been assessed as low to moderate risk. However, he remains a risk. Given the seriousness and nature of the applicant’s crimes and having regard to the consequences and degree of harm that will result should that risk materialise, the risk, albeit low to moderate, is unacceptable.

48    At [80] the Tribunal noted that it was satisfied that Mr Oliver and his family may struggle if he is forced to return to Sri Lanka. The Tribunal observed that the “other considerations” identified favoured allowing Mr Oliver to remain in Australia. The Tribunal however concluded that “the weight to be attached to the primary considerations is far greater and the scales remain firmly tipped towards visa cancellation”.

49    A fair reading of the Tribunal’s decision shows that the Tribunal made findings which supported the cancellation of Mr Oliver’s visa and other findings which supported Mr Oliver being allowed to remain in Australia. The conclusion arrived at by the Tribunal was open to it. It may well be a conclusion as to which logical or rationale or reasonable minds might differ. However it is not a conclusion which could not be formed by a reasonable person. There was probative evidence before the Tribunal which logically and rationally supported the conclusion that the Tribunal reached.

50    As Crennan and Bell JJ said in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 131:

If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

51    Although presented as jurisdictional error, the essence of Mr Oliver’s complaint is that the Tribunal placed too much weight on the negative findings and too little weight on the positive findings and thereby came to the wrong conclusion. That approach invites me to reconsider the merits of the decision, an invitation I am bound to reject because that is not the task I am allowed to undertake on the judicial review of an administrative decision. For those reasons, I am not satisfied that the Tribunal’s decision was unreasonable, in the sense required to establish jurisdictional error.

52    It follows that Mr Oliver’s application must be dismissed. I will make an order to that effect together with an order that Mr Oliver pay the Minister’s costs.

Associate:

Dated:    20 May 2011