FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v DNCW [2011] FCA 806

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the first respondent’s costs to be taxed in default of agreement.

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

1    In May 2005, the first respondent DNCW was found guilty by a jury in the County Court of Victoria of the rape of his former partner, M. After an appeal to the Court of Appeal, DNCW was sentenced to five years and six months’ imprisonment. In December 2004, DNCW was convicted of two counts of attempted incest against M’s daughter (effectively his step-daughter). He was sentenced to two years and six months’ imprisonment on each count with a concurrent period of one year and nine months. Taking into account the sentence on the rape charge, DNCW received a total effective sentence of seven years and six months with a non-parole period of five years.

2    DNCW is not an Australian citizen. He arrived here from Malta with his immediate family when he was four years old. He is now 34 years old.

3    In May 2010, a delegate of the applicant Minister decided to cancel DNCW’s Class BF Transitional (Permanent) Visa under s 501(2) of the Migration Act 1958 (Cth) (“the Act”). Section 501(2) of the Act allows the Minister to cancel a visa if the visa holder does not satisfy the Minister that he or she passes “the character test”. Under s 501(6) a person does not pass the character test if that person “has a substantial criminal record”.

4    DNCW sought a merits review of the delegate’s decision in the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal set aside the decision of the delegate and decided that DNCW’s visa should not be cancelled. The Minister now seeks judicial review of the Tribunal’s decision pursuant to s 476A(1)(b) of the Act. This judgment is confined to dealing with the question of whether, as the Minister claims, the Tribunal committed a jurisdictional error in coming to its decision. It does not, and cannot, deal with any issue concerning the merits of the Tribunal’s decision. It is, in no way, a reflection by the Court on whether DNCW should or should not be entitled to remain in Australia having regard to his criminal convictions and the nature of them. That was a matter for the Tribunal alone under the Administrative Appeals Act 1976 (Cth) (“the AAT Act”).

The delegate

5    There is no contest in this proceeding that DNCW does not pass the character test. In coming to that view the delegate relied on the rape conviction alone. Notwithstanding DNCW’s failure to pass the character test, the Minister retained a discretion under s 501(2) of the Act not to cancel DNCW’s visa. Direction No 41 – Visa Refusal and Cancellation under s 501 (“the Direction”) is a Ministerial Direction made under s 499 of the Act. The Direction guides the exercise of the Minister’s discretion under s 501(2) of the Act. The delegate, and the Tribunal on review, were each required to comply with the Direction in deciding whether or not to exercise the discretion.

6    In addition to the rape conviction the delegate took into account the two incest offences. The delegate added:

I noted that [DNCW] has a criminal history in Australia which includes a considerable number of other convictions from 1996 to 2004, involving offences of dishonesty and other serious matters.

The Tribunal

7    As for the delegate, the issue for the Tribunal on review was whether or not it should cancel the visa, given DNCW’s failure to pass the character test. The Minister submits, through his counsel, Mr Knowles, that the Tribunal did not properly apply the Direction. Mr Knowles contends that the Tribunal:

    failed to consider the seriousness and nature of the relevant conduct;

    failed to have regard to DNCW’s general conduct and total criminal history; and

    failed to make a finding about the risk of re-offending by DNCW.

8    For the reasons which follow, when read fairly, in context and as a whole, the Tribunal’s decision did not suffer from the alleged failings asserted by the Minister. Consequently the Tribunal’s decision is free of jurisdictional error so that the Court is not empowered, in the circumstances, to interfere with it.

9    At [3] of its decision, the Tribunal observed that it was required to exercise its discretion having regard to the primary and other considerations set out in the Direction. It then proceeded to do so. How it performed that function has led to this proceeding.

First primary consideration

10    Under clause 10(1)(a) of the Direction, the first primary consideration is:

The protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence.

11    Clause 10.1(2) of the Direction refers to two factors relevant to assessing the level of risk of harm to the community. They are:

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

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

12    Clause 10.1.1 addresses the concept of “seriousness and nature of the conduct”. Clause 10.1.2 deals with, “(t)he risk that the conduct may be repeated”.

13    “The relevant conduct” is not defined by the Direction, although a clue is provided to what is intended to be covered by that term in Cl 10.1.2(1) where the Direction says:

The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.

14    Clause 10.1.2(2)(a), in this context gives particular weight, amongst other matters, to:

a recent history of convictions, which should be considered as indicating an increased risk of re-offending.

15    In considering “the seriousness and nature of the conduct”, the Tribunal noted the text of Cl 10.1.1(1) which says:

Crimes involving violence or threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors…) are especially abhorrent to the whole community.

16    The Tribunal next referred to Cl 10.1.1(2) which sets out examples of offences and conduct that are considered serious. Reference is made to “offences perpetrated against a child (particularly sexually-based offences)”, “rape and any other sexually-based offences” and “convictions for attempting to commit an offence”.

17    The Tribunal reviewed the circumstances of the rape and incest convictions and sentencing comments. It also referred to comments made by a County Court judge in civil proceedings brought by DNCW’s former partner arising out of the rape. The Tribunal referred to the conduct as “disgraceful and depraved”. At [25] the Tribunal said:

The first part of the first primary consideration weighs heavily against [DNCW] in the exercise of the discretion. The offences committed by [DNCW] fall squarely within the matters contemplated by [the Direction].

Also at [26], it said:

I will keep in mind the depravity of [DNCW’s] conduct when ultimately deciding whether, in the exercise of the discretion available to me, whether his visa should be cancelled.

18    In its concluding remarks the Tribunal made it clear that the first primary consideration was the only consideration which weighed against DNCW, saying at [75] that:

But for the first primary consideration, all remaining considerations, both primary and other, satisfy me on balance, that the discretion to cancel [DNCW’s] visa should not be exercised.

19    Notwithstanding the very strong finding about the first primary consideration not favouring DNCW, Mr Knowles submits that there should have been, and was not, a finding by the Tribunal which dealt with the other conduct raised before it. This was a reference to other convictions which were the subject of discussion by the Tribunal at [28] when dealing with the second primary consideration – “risk of repeated conduct”. There the Tribunal said:

The two incest offences and the rape offence occurred in July 2003. [DNCW] has not subsequently offended. He did have a number of prior convictions for theft, unlawful assault, breach of an Intervention Order, burglary, cultivating a narcotic plant, unlawful possession and possession of housebreaking implements. The date of the commission of those offences is not known however the summary of [DNCW’s] convictions are recorded in the LEAP Report (G3, p 35-40). [DNCW] was convicted for some offences in 1996, in 2002 and in 2004. Whilst none of those offences may be excused, it is unlikely that any of them would have given rise to an application under s 501 of the Act.

20    Mr Knowles says that the Tribunal made no specific finding about matters outside the sexual offences, and that as those matters involved material questions of fact, findings were required by reference to the evidence or material on which such findings were based; see 43(2B) of the AAT Act. Mr Knowles submits that as no finding was made about the non-sexual offences on the first primary consideration, the Tribunal must be considered not to have taken them into account.

21    The Court rejects these submissions. The Tribunal’s decision must be read as a whole. It is difficult to comprehend how more adverse the first primary consideration could have been for DNCW than the way it was expressed by the Tribunal. The Tribunal used expressions such as “disgraceful” and “depraved”. It viewed that conduct extremely dimly. It is conduct which the Direction highlights and refers to as “serious” in Cl 10.1.1(2). Although in the context of the second primary consideration, the Tribunal observed that none of the other offences (which occurred between 1996 and 2004), would have been likely, by themselves, to have raised the Minister’s interest under s 501. The Court does not consider that the Tribunal was unmindful of the 1996 to 2004 offences in coming to its view on the first primary consideration. There was nothing wrong in its focus on the more serious and more recent offences in coming to its assessment of the first primary consideration. It is difficult to comprehend how that assessment may have been materially affected by less significant and older offences.

22    For the above reasons the Court rejects the Minister’s submission that the Tribunal failed to consider the seriousness of all the relevant conduct. The Tribunal focussed on the rape and incest offences but did refer to the other criminal offences and the finding of the County Court judge in a civil proceeding. To find that the Tribunal had not considered the seriousness of all relevant conduct would be to take an unrealistic approach and not read the decision as a whole or in context.

The second primary consideration

23    Mr Knowles submits that the second primary consideration about the risk of re-offending concentrated, in terms having regard to [29] of the decision, on the attempted incest and rape charges alone and not on the other conduct which showed a pattern of offending. Mr Knowles also contends that it is unknown what a consideration of the likelihood of reoffending in respect to the non-sex offence matters would have had on the exercise of the Tribunal’s discretion.

24    There was no error in the Tribunal’s concentration on the more serious conduct which was before it. The major concern of the community, in the context of DNCW’s offending, was the likelihood of recidivism in respect of the heinous sexually based offences. Risk of repeated conduct of the other matters which the Tribunal referred to at [28] paled into insignificance by comparison. To take any other view, is to elevate “nit-picking” over commonsense and practicality.

25    The more serious allegation by the Minister is that the Tribunal did not make a finding about DNCW’s risk of re-offending. The Court now turns to deal with that issue.

Did the Tribunal make a finding about the risk of re-offending?

26    At [27] to [31] of its reasons the Tribunal dealt with the topic of “risk of repeated conduct”. At [27] it noted that it must have regard, in this context, to the previous general conduct and total criminal history of DNCW. After making its observations about the general criminal antecedents of DNCW, the Tribunal then said at [29]:

For the purposes of this part, the conduct to which I will refer concerns the three convictions for attempted incest and rape.

27    At [30] to [38], the Tribunal discussed factual matters relevant to whether DNCW was likely to re-offend. At [30], it observed that there is nothing indicating an increased risk of re-offending but that DNCW had been in prison since December 2004 and had not offended whilst incarcerated. It discussed at [31] to [32] DNCW’s willingness to enter a sex offenders program. At [33], it referred to DNCW having mental health issues at the time of his offending and at [34] to his understanding that rape is very serious and “no” means “no”. At [35], it referred to DNCW’s absence of remorse concerning the rape conviction.

28    Significantly, at [36] the Tribunal said:

I am satisfied that [DNCW] does understand the gravity and depravity of the offences which gave rise to the conviction for attempted incest. Those incidents appear to be isolated and I expect that by successfully completing the sex offenders program, the risk of re-offending is reduced.

29    At [37], the Tribunal expressed concern about DNCW’s lack of remorse for rape. It referred to his continuing claims of innocence. It then said:

During the hearing, [DNCW] expressed an understanding of the behaviour which would constitute rape. He acknowledged that rape is a very serious violent crime. This does give me some degree of confidence that he is unlikely to commit that offence again. [DNCW] is now six years older than….when these offences occurred. I would expect a greater level of maturity and by his imprisonment and these proceedings, he will have no doubt of the consequences of re-offending.

[Original emphasis.]

30    Finally, the Tribunal at [38] considered that DNCW’s older brother would be a positive influence on him and “further reduce” his risk of re-offending.

31    Mr Knowles submits that the Tribunal did not make a finding about the nature and extent of any risk that DNCW might re-offend. He says that, having regard to the terms of the Direction, the Tribunal was obliged to make a finding in order for it to conduct the balancing exercise involved in any assessment of the first primary consideration. Mr Knowles contends that the failure to make a finding about the nature and extent of any risk that DNCW might re-offend showed that it failed to take into account a relevant consideration that it was bound to take into account in coming to its decision.

32    Counsel for DNCW, Mr Gardiner, counters with the submission that the discussion at [27] to [38] shows that the Tribunal considered DNCW’s risk of re-offending was low. He says that, fairly read, this part of the reasoning of the Tribunal shows that it considered there to be a low risk of DNCW re-offending.

33    The Tribunal concentrated on the incest and rape convictions in this aspect of its reasons. It was not blind to the occurrence of the unlawful assault and breach of intervention order, as shown above. There is no error in approaching a consideration of the risk of re-offending by concentrating on the more serious relevant and recent criminal convictions. Concentrating on these convictions, fairly read, the Tribunal decision catalogues the reasons why it considered that there was a low risk of re-offending, without drafting a final sentence summarising the effect of what it had just said.

34    One should not forget what the Tribunal said at [37], which is reproduced at [29] above that confirms the Tribunal considered DNCW had a low risk of re-offending. This aspect of the Minister’s challenge to the decision of the Tribunal is rejected.

Procedural fairness

35    In his amended application and outline of submissions the Minister raised an issue about denial of procedural fairness. That allegation was abandoned after some robust questioning from the bench. Mr Knowles received instructions to withdraw what was an apparently weak point. The Minister, counsel and instructing solicitors are to be congratulated for their conduct in this respect which is exemplary conduct from a model litigant.

Disposition

36    The role for this Court in reviewing the decision of the Tribunal is constrained by the inherent limitations of judicial review. The High Court instructs that where the Tribunal’s decision was one that was open to it, it is not for this court to supplant the discretionary decision of the Tribunal and to “trespass into the forbidden field of a review on the merits”; see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 577 and Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. This would exceed the proper limits of judicial scrutiny.

37    At 597 in Guo, Kirby J concluded that “so long as the tribunal considered the correct legal questions, no lawful basis could be established for the intervention of the Federal Court simply because that court disagreed with the tribunal’s factual conclusions”. As no jurisdictional error can be discerned from the matters raised by the Minister, the Court is obliged to order as follows:

1.    The application is dismissed.

2.    The applicant pay the first respondent’s costs to be taxed in default of agreement.

Associate:

Dated:    19 July 2011