FEDERAL COURT OF AUSTRALIA

Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883

FEDERAL COURT OF AUSTRALIA

Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883

CORRIGENDUM

1.    In paragraph 11 of the Reasons for Judgement, in the first sentence, “s 502” should read “s 501”.

Associate:

Dated:    13 October 2014

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

1    The applicant (Mr Gbojueh) is a Liberian citizen. He came to Australia in 2006 and successfully applied for a Class XB Subclass 200 Refugee and Humanitarian visa (“the visa”).

2    In 2007 he had sexual relations with a 12 year old girl. In 2008 he was convicted in the District Court of South Australia on one count of rape and two counts of unlawful sexual intercourse with a person under 14. He appealed to the Court of Criminal Appeal. The rape conviction was quashed. He was then resentenced to 27 months imprisonment in respect of both of the other two charges on which he was convicted.

3    Mr Gbojueh was scheduled to be released from prison on 3 February 2011. Before his release a delegate of the then Minister cancelled his visa under s 501(2) of the Migration Act 1958 (Cth) (“the Act”). That subsection empowered the Minister to cancel the visa of a non-citizen if the Minister was not satisfied that the non-citizen passed the character test. That test is defined by s 501(6) of the Act.

4    Mr Gbojueh appealed from this decision to the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal upheld the appeal and set aside the delegate’s decision.

5    The then Minister for Immigration and Citizenship considered the Tribunal’s decision and determined, pursuant to s 501A(2) of the Act, to set it aside and cancel the visa.

6    Mr Gbojueh sought judicial review of the Minister’s decision in this Court. His application was successful on the ground that Mr Gbojueh had been denied procedural fairness by the Minister. This had occurred because the Minister had taken into account prejudicial information on which Mr Gbojueh had not been given the opportunity to comment or make submissions prior to the Minister’s decision being made. Other grounds (including some grounds relied on in the present proceeding) were dismissed: see Gbojueh v Minister for Immigration and Citizenship (2012) 202 FCR 417 (“Gbojueh (No 1)”).

7    The present Minister gave further consideration to the Tribunal’s decision in the light of the Court’s decision in Gbojueh (No 1). On 13 January 2014 he determined to set aside the Tribunal’s decision and to cancel the visa. He acted, as his predecessor had done, under s 501A(2).

8    Mr Gbojueh has applied to the Court for judicial review of the Minister’s decision.

THE GROUNDS

9    Mr Gbojueh was given leave to proceed on a second amended application dated 5 May 2014.

10    This application contained three broad grounds. They were that the Minister had erred by:

    Failing to give proper, genuine and realistic consideration to the nature and seriousness of Mr Gbojueh’s offending. This had occurred, so it was contended, because the Minister had failed to have regard to the circumstances of Mr Gbojueh’s offending. This failure had impinged on the Minister’s determination that cancellation of Mr Gbojueh’s visa was in the national interest and on the exercise of his discretion to cancel the visa.

    Exercising his discretion in accordance with a principle or policy that any person who committed a crime of a sexual nature against a minor was to be treated as a person who presented an unacceptable risk of re-offending.

    Finding that there was a risk that Mr Gbojueh would re-offend notwithstanding the existence of “expert” opinions to the contrary. In so finding it was contended that the Minister had failed to give genuine and realistic consideration to the expert evidence, replaced the expert opinion with his own lay opinion, acted unreasonably and had taken an irrelevant consideration into account.

As will be seen some of these broad grounds overlap.

the relevant legislation

11    By s 502 of the Act the Minister, or a delegate of 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 that test: see s 501(2). The “character test” is defined in s 501(6). Relevantly, it provides that a person does not pass the character test if the person has a “substantial criminal record”. That term is defined in s 501(7). A person who has been sentenced to a term of imprisonment of 12 months or more is deemed to have such a record.

12    If a delegate of the Minister or the Tribunal determines not to exercise the power, conferred by s 501(2), to cancel a visa, the Minister is empowered by s 501A, to set aside such a decision and cancel the visa. This was the power on which the Minister relied in making the decision presently under review.

13    Section 501A of the Act provides that:

“Refusal or cancellation of visa--setting aside and substitution of non-adverse decision under subsection 501(1) or (2)

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision (the original decision ):

(c)    not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or

(d)    not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;

whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.

Action by Minister--natural justice applies

(2)    The Minister may set aside the original decision and:

(a)    refuse to grant a visa to the person; or

(b)    cancel a visa that has been granted to the person;

if:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)    the person does not satisfy the Minister that the person passes the character test; and

(e)    the Minister is satisfied that the refusal or cancellation is in the national interest.

Action by Minister--natural justice does not apply

(3)    The Minister may set aside the original decision and:

(a)    refuse to grant a visa to the person; or

(b)    cancel a visa that has been granted to the person;

if:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)    the Minister is satisfied that the refusal or cancellation is in the national interest.

(4)    The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).

(4A)    Under subsection (2) or (3), the Minister may cancel a visa that has been granted to a person even if the original decision under subsection (1) was a decision not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person.

Minister's exercise of power

(5)    The power under subsection (2) or (3) may only be exercised by the Minister personally.

(6)    The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances.

Decision not reviewable under Part 5 or 7

(7)    A decision under subsection (2) or (3) is not reviewable under Part 5 or 7.”

NON-CONTENTIOUS MATTERS

14    A number of matters relating to the application of s 501A were not contentious. It was not disputed that:

    The Minister exercised the power personally: see s 501A(5).

    The Minister reasonably suspected that Mr Gbojueh failed the character test: see s 501A(2)(c).

    Mr Gbojueh had failed to satisfy the Minister that he passed the character test: see s 501A(2)(d).

    There was no relevant direction, made under s 499 of the Act, which had application to the exercise by the Minister of his powers under s 501A(2).

THE CIRCUMSTANCES OF MR GBOJUEH’S OFFENDING

15    The Minister provided detailed reasons for his decision. In dealing with the questions of whether the cancellation of Mr Gbojueh’s visa was in the national interest and whether he should exercise his discretion to cancel the visa, the Minister said that:

“NATIONAL INTEREST

…

22.    In deciding whether it is in the national interest to cancel Mr GBOJUEH’s visa, I have considered the nature and seriousness of Mr GBOJUEH’s two convictions of Unlawful Sexual Intercourse with a Person Under 14 Years of Age. The convictions were for crimes which were:

•    of a sexual nature;

•    committed against a vulnerable person, a child under 14 years of age; and

•    particularly abhorrent due to the consequences which were the pregnancy and resultant termination of that pregnancy of the 12 year old victim.

23.    I consider that such offences are particularly serious and repugnant to the Australian community.

24.    In light of the above information regarding the nature and seriousness of the offending, I consider that cancellation of Mr GBOJUEH’s visa in the natural interest, given the serious nature of the offending.

…

DISCRETION

…

29.    I gave key consideration to the protection of the Australian community (taking into account the seriousness and nature of the conduct and the risk to the community should the conduct be repeated), ties to Australia, the best interests of any minor children in Australia and relevant international obligations.

Protection of Australian Community

Seriousness and nature of conduct

30.    I consider that all sexually based offences are serious. Mr GBOJUEH was convicted of sexual offences, two counts of Unlawful Sexual Intercourse with a Person Under 14 Years of Age.

31.    Offences against vulnerable victims, such as children are especially abhorrent in my opinion. The offences were committed against a 12 year old girl, herself a refugee from Liberia.

32.    The offences resulted in the girl’s pregnancy and the subsequent termination of that pregnancy. I consider that the Australian community would regard such offending as repugnant.

33.    Mr GBOJUEH incurred a term of imprisonment for the two offences detailed above, further reflecting their serious nature.

34.    I have also taken into account Mr GBOJUEH and his representatives submissions that the length of time of the sentence and the reduction in the period of incarceration on appeal as an indicator of how seriously the offences were viewed by the courts.

35.    I have taken into account that Mr GBOJUEH has no other convictions recorded against him in Australia or overseas and no breaches of judicial orders.”

16    Mr Gbojueh contended that these passages disclosed that the Minister had failed to take into account that he was ultimately sentenced on the basis that the complainant had been the instigator of each of the sexual encounters in respect of which he had been convicted. As a result the sentence of 27 months imprisonment was at the lower end of the available sentencing range. This had been recognised by the Tribunal when it had dealt with Mr Gbojueh’s earlier appeal but had not been acknowledged by the Minister.

17    Mr Gbojueh said that the Departmental submissions which had been placed before the Minister prior to his decision included passages extracted from the trial judge’s original sentencing remarks but that the judge’s remarks, when he re-sentenced Mr Gbojueh after the Court of Criminal Appeal had set aside the rape conviction, were not included. This complaint misstates the position. The submissions contained extracts from both sets of sentencing remarks (see at [34] and [36]). Neither of these passages dealt with the disputed question of whether the complainant had been the instigator of the sexual contact. Full transcripts of both sets of sentencing remarks by the trial judge were provided to the Minister as attachments to the Departmental submissions.

18    Mr Gbojueh submitted that the Minister’s failure, in his reasons, to refer to passages in the resentencing remarks and in the Tribunal’s reasons, which dealt with the “instigation” and “consent” issues, demonstrated that the Minister had failed to give genuine and realistic consideration to the seriousness of Mr Gbojueh’s offending.

19    It was also asserted that the Departmental submissions were misleading because they only contained an extract from the reasons of the Tribunal and that extract concluded at the point where the Tribunal embarked on a consideration of the “consent” question. Again, however, the Minister was provided with the full text of the Tribunal’s reasons.

20    Notwithstanding the fact that the Minister had all the relevant information relating to the treatment by the District Court and the Tribunal of conflicting assertions by Mr Gbojueh and the complainant about the “instigation” and “consent” issues, Mr Gbojueh sought to maintain his argument by asserting that the omission from the Departmental submissions meant that there had been a “failure to join the dots.”

21    This aspect of Mr Gbojueh’s challenge to the Minister’s decision fails at a number of levels. In the first place it fails at a factual level. It assumes, without foundation, that the Minister failed to read and consider the attachments and had confined his attention to the material in the body of the Departmental submissions. There is no evidentiary foundation for this assertion. Furthermore, it is clear from the Minister’s reasons that he did not confine his attention to the seriousness of the crimes of which Mr Gbojueh stood convicted. He had regard to the age of the victim, the fact that she was, like Mr Gbojueh, a refugee from Liberia, her vulnerability and her resultant pregnancy. Given that, at the time of the offences, Mr Gbojueh was aged 42 and his victim 12 it was open to the Minister to take the view that, even if the victim had been the instigator of the sexual encounters, this was a consideration which carried little or any weight in assessing the seriousness of Mr Gbojueh’s offending. It may not be without significance that Mr Gbojueh’s legal advisers did not seek to place any reliance on the victim being the initiator of the contact in their written submissions to the Minister opposing the proposed visa cancellation.

22    Mr Gbojueh’s argument also proceeds on the assumption that there exists a generally available ground of jurisdictional error of failure “to give proper, genuine and realistic consideration” to the relevant material advanced by a party. The authority relied on by Mr Gbojueh was the decision of Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291. Khan does not stand for the broad proposition for which Mr Gbojueh contends. As the High Court observed in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 174-176, it is important to notice the context in which Gummow J’s observation was made. In Khan a decision, made under the Act, was challenged on the ground (among others) that the impugned discretionary power had been exercised in accordance with a rule of policy, without regard to the merits of the particular case. This challenge was brought under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Gummow J held that the delegate of the Minister and a review panel had both erred in the manner alleged because they had failed to give proper, genuine and realistic consideration to the merits of the case advanced by the applicant when deciding to give effect to a policy relating to the treatment of non-citizens who had Australian born children and who sought permanent residence status. It is one thing to assert that a decision maker errs if he or she determines to give effect to a principle or policy without regard to submissions and material advanced by a party with a view to persuading the decision maker that the policy should not govern the outcome of a particular case. It is another, altogether, to maintain that any failure to take account of all available material necessarily gives rise to jurisdictional error: see Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]. A failure by a decision maker, for example, to deal with a relevant consideration advanced by a party would not give rise to jurisdictional error if the consideration concerned was not one which the decision maker was bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.

23    Mr Gbojueh’s argument fails at another level. It assumes that the Minister was bound, when exercising his powers under s 501A(2) to have regard, not just to the offence or offences committed by a visa holder which caused the person to fail the character test, but also to have regard to the circumstances of the offending. No such obligation arises. In Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at 523 Kiefel and Bennett JJ said, in dealing with the application of s 501(2) of the Act, that:

“The object of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens: s 4(1). To advance that object, provision is made for the removal or deportation from Australia of non-citizens whose presence is not permitted by the Act: s 4(4). If the Minister were able, consistent with the object of the Act, to consider a matter as broad as the national interest, in determining whether a person ought to be permitted to remain in Australia, it does not seem possible to imply some obligation on the Minister’s part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed. By way of illustration, the Minister may consider that the national interest requires that the commission of a particular type of offence will inevitably result in the cancellation of a visa, where there has been a sentence to imprisonment for the requisite term. To construe the section as requiring the Minister to consider factors such as the level of involvement of the visa holder in the offences would cut across that broad discretion.”

24    A majority of the High Court approved this passage in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at 606 (Heydon and Crennan JJ, with whom Gleeson CJ agreed). See also: Tewao v Minister for Immigration and Citizenship (2012) 126 ALD 185 at [39].

25    Mr Gbojueh sought to suggest that Huynh was distinguishable because, in that case, the sentencing remarks of the Court which had dealt with Ms Huynh had been before the Minister. As already noted the Minister, in the present case, also had the full sentencing remarks before him, albeit as an annexure to the Departmental submissions.

26    Mr Gbojueh also disputed that Huynh stood as authority for the proposition that the Minister was not bound to have regard to the “actual conduct of the [visa holder]” when exercising his powers under s 501A(2). This was because, he contended, the proposition had “been criticised and not followed” by the Full Court in NBNB v Minister for Immigration and Border Protection (2014) 307 ALR 90. In that case the Full Court dealt with appeals from five applicants who had been found to be refugees but had been denied protection visas by the Minister under s 501(1) of the Act because they had been convicted of criminal offences while in detention. They argued that, in exercising his power, the Minister had erred by failing to have regard to a consequence of his decision. That consequence was that each applicant faced indefinite detention in Australia. This was because none of them had a visa. Under the Act it was required that each must be detained and removed from Australia as soon as reasonably practicable. There was, however, in each case, no other country which was prepared to accept the applicant and in which the applicant would not confront a risk of persecution.

27    The Minister, relying on the passage from the joint judgment in Huynh (quoted above at [23]), argued that he was not required to have regard to the consequences of his refusal to grant visas because the consequences were factors which were personal to each visa holder.

28    Buchanan J (with whom Allsop CJ and Katzmann J agreed) quoted the relevant part of the joint reasons in Huynh and then continued (at 121):

“Those observations must be considered in the context that the specific question being addressed was whether a minister was obliged to take into account (and be informed about) sentencing remarks made by an appellate court as well as a sentencing judge: see Huynh at [70]. Put more broadly, the question was whether a minister should consider ‘the circumstances surrounding the crimes concerned and the imposition of sentences for those crimes’: see Huynh also at [70].”

His Honour went on to note that, in the cases under consideration by him, the Minister had, in fact, had regard to the particular circumstances of each applicant’s offending conduct. He went on to hold that Huynh did not support a wider proposition that the Minister, when exercising his powers under s 501 of the Act, is under no obligation to pay any regard to, or consider, the consequences for a particular visa applicant of refusal of a visa.

29    Similar issues arose in another appeal in which judgment was delivered on the same day by the same Full Court. That case was NBMZ v Minister for Immigration and Border Protection (2014) 307 ALR 49. Buchanan J (with whom the other members of the Court agreed) referred to what he had said about Huynh in NBNB. He restated his conclusion:

“…that Huynh does not detract from the principle distilled in SZJSS that it is not permissible to ignore the merits of a particular case in order to give effect to a rule or policy. The merits of a particular case may or may not extend to consideration of the conduct which causes a visa applicant to fail a character test. In the present case the minister did enter the territory because he made judgments about the applicant’s conduct…”. (Emphasis added).

30    In dealing with another ground on which the appellant in that case had relied, namely, unreasonableness, Allsop CJ and Katzmann J suggested, obiter, that the views expressed in the joint judgment in Huynh may need to be reconsidered where the Minister was confronted with “a person who feared for his life, and [faced being] detained indefinitely, because he had committed the offence for which he was convicted, in the circumstances in which he did.” (at 55).

31    What is significant for present purposes is that, in neither case, did the Full Court expressly or impliedly overrule Huynh to the extent that Huynh supports the proposition that the Minister is not obliged, in exercising his power under s 501, to consider the circumstances surrounding the commission of offences by the non-citizen and their impact on the sentencing discretion. The powers exercised by the Minister, in the present case, were governed by the same two preconditions relating to the character test as were considered by the Full Court in Huynh: see s 501A(2)(c) and (d). The reasoning in Huynh, therefore, applies with equal force to the construction and application of s 501A(2).

32    The broad scope of the power, conferred on the Minister by s 501A(2) has been remarked on in many cases. In Gbojueh (No 1) Bromberg J (at [43]-[44]) said that:

“43.    The authorities which have considered s 501A(2) (and in a similar context the reference to the national interest in s 501(3)), make it clear that the matters that the Minister may take into account in determining the national interest are largely matters for the Minister: Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 at [89] (French, O’Loughlin and Whitlam JJ); Huynh at [74] (Kiefel and Bennett JJ); Tewao v Minister for Immigration and Citizenship (2011) 125 ALD 57 at [12] and [32] (Katzman J); Maurangi v Bowen [2012] FCA 15 at [70] (Lander J); and see also Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [61] (Gleeson CJ and Gummow J); Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 418-419 (Gaudron J), 502-503 (Kirby J).

44.    The exercise calls for a broad evaluative judgment. It calls for the Minister’s satisfaction in relation to a power that may only be exercised personally by the Minister: s 501A(5). Political responsibility and accountability is reposed in the Minister in relation to a subject matter of wide scope. All of that, strongly suggests that the Minister is left largely unrestrained to determine for him or herself what factors are to be regarded as relevant when determining whether the cancellation or refusal of a visa is in the national interest and thereafter whether to exercise the discretion conferred by s 501A(2).”

33    In Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 419 Gaudron J specifically contemplated that, in the context of s 501 of the Act, “the crimes, or some of the crimes of which a person has been convicted may be of such a nature as to found a satisfaction that it is in the national interest to cancel his or her visa”.

34    In the present case the Minister gave consideration to the seriousness of Mr Gbojueh’s offending and to a number of significant aspects of the circumstances surrounding the offending when he determined that it was in the national interest to cancel Mr Gbojueh’s visa and exercise his discretion to cancel the visa. In doing so he made the broad evaluative judgment contemplated by s 501A(2). He had regard to what he described as both the nature and seriousness of Mr Gbojueh’s criminal conduct. Although not obliged to do so, the Minister expressly referred to some material matters which had been referred to in the trial judge’s sentencing remarks such as the respective ages of Mr Gbojueh and his victim and her resultant pregnancy. His failure to advert expressly to the issue of who initiated the sexual contact in both cases is not, in any event, suggestive of reviewable error. This issue was referred to by the sentencing judge in his short reasons which were before the Minister. In making his overall assessments this matter may, understandably, not have loomed large in the Minister’s thinking given the respective ages of the participants.

35    This first basis of challenge must be rejected.

APPLICATION OF A POLICY

36    In his amended application Mr Gbojueh alleged that the Minister had erred in the exercise of his discretion by acting in accordance with a principle or policy “that any person who committed a crime of a sexual nature against a minor was by that fact a person who presented an unacceptable risk of re-offending.”

37    In his written submissions Mr Gbojueh rephrased his complaint. He submitted that “the Minister … applied a blanket policy … that a person who fails the character test by reason of sexual misconduct with minors commits an offence that is so serious that any risk of re-offending is unacceptable and the fact of conviction establishes that risk.”

38    The allegation that the Minister applied a “blanket policy” is founded on some passages in the Minister’s reasons. As has already been noted (above at [15]) the Minister commenced the section of his reasons, dealing with the exercise of discretion, by referring to the need to protect the Australian community and making the observation that he considered “that all sexually based offences are serious.” Having examined a range of considerations, some adverse and some favourable to Mr Gbojueh, the Minister expressed his conclusions as follows:

“68.    I concluded that cancellation of Mr GBOJEUH’s visa is in the national interest, given the serious nature of his offending and the need to protect the Australian community for (sic) such offending. I considered that sexual offences against children are so serious that any risk of re-offending is unacceptable.

69.    Even strong countervailing considerations, as presented in this case, are unable to convince me to displace that principle. In this regard I note that Mr  GBOJEUH has demonstrated good conduct, he has strong family ties, the best interests of his five grandchildren and the significant impediments that he will face upon return to Liberia, noting in particular his mental health issues.”

39    At both common law and under statutory judicial review a decision-maker will not commit jurisdictional error merely by having regard to a principle or policy when exercising a statutory discretion. Error, may, however, occur if the decision-maker considers him or herself bound to apply the policy without regard to countervailing considerations and acts accordingly. In Elias v Commissioner of Taxation (2002) 123 FCR 499 at 506-7 Hely J summarised the position as follows:

“The Commissioner is entitled to adopt a policy to provide guidance as to the exercise of the discretion, provided the policy is consistent with the statute by which the discretion is conferred. Thus if the statute gives a discretion in general terms, the discretion cannot be truncated or confined by an inflexible policy that it shall only be exercised in a limited range of circumstances. A general policy as to how a discretion will ‘normally’ be exercised does not infringe these principles, so long as the applicant is able to put forward reasons why the policy should be changed, or should not be applied in the circumstances of the particular case.”

See also: R v Moore; Ex parte Australian Telephone and Phonogram Officers’ Association (1982) 148 CLR 600 at 612; Tang v Minister for Immigration and Ethnic Affairs (1986) 67 ALR 177 at 189-190 (Pincus J); Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 at 358.

40    As already observed, the discretion, conferred on the Minister by s 501A(2), is couched in broad terms. He was, therefore, had he wished to do so, able to proceed to take into account a policy of the kind alleged. A reading of his reasons supports the view that the Minister regarded all sexually based offences as being serious. He did not, however, regard the commission of such offences as leading inevitably to an adverse exercise of his discretion. Had he done so there would have been no occasion for him to embark, as he did, on a consideration of other matters, personal to Mr Gbojueh, which tended in favour of a decision not to cancel his visa. The Minister’s approach, as he made clear in his conclusions, was to place great weight on the nature of the offences which had been committed by Mr Gbojueh but, nonetheless, to be open to persuasion that, in an appropriate case, the principle could be displaced by humanitarian and other considerations. In the end he judged this not to be such a case.

41    Mr Gbojueh has failed to demonstrate that the Minister impermissibly fettered the exercise of his discretion. This ground must fail.

42    I note that a similar argument was rejected by Bromberg J in Gbojeuh (No 1) at [96]-[106].

THE RISK OF RE-OFFENDING

43    As has already been seen the Minister, in exercising his discretion to cancel Mr Gbojueh’s visa, considered that there was an unacceptable risk that Mr Gbojueh might re-offend. In doing so the Minister had regard to certain professional assessments which had been prepared on Mr Gbojueh’s behalf and submitted, by his advisers, to the Minister. Those assessments related to the likelihood of him re-offending in Australia.

44    Mr Gbojueh made a number of complaints about the way in which the Minister had treated this professional material. He alleged that the Minister had erred “by replacing expert opinion with his own lay opinion”, that the Minister had acted unreasonably (in the Wednesbury sense) in concluding that there was a risk that Mr Gbojueh would re-offend “when this was contrary to and made notwithstanding all the material before him and not based on reason” and that the Minister had regard to an irrelevant consideration, namely, “his own knowledge and understanding of criminal recidivism”.

45    The risk of re-offending was an issue to which the Minister had regard in exercising his discretion to cancel Mr Gbojueh’s visa. He noted that Mr Gbojueh had expressed remorse for his conduct and apologised to the Liberian community in South Australia for his actions. He acknowledged that Mr Gbojueh had become involved in an organisation which promoted the eradication of violence against women and children, that he had displayed good conduct whilst imprisoned and that, during this time, he had completed several educational courses.

46    The Minister recorded that professional assessments had been made that Mr Gbojueh “is at low risk of reoffending”. He also referred to a recent psychological assessment by Mr Tindaro Fallo that there was no risk of Mr Gbojueh re-offending. The Minister noted that the Tribunal had also considered professional opinions and had concluded that Mr Gbojueh was at low risk of re-offending.

47    The Minister then found that:

“43.    Notwithstanding Mr GBOJUEH’s recent conduct and the above independent material which places him at low to no risk, in light of Mr GBOJUEH’s criminal record I consider that there is a risk that Mr GBOJUEH will reoffend.

44.    In concluding that Mr GBOJUEH may reoffend, I am mindful of the fact that great harm could result to a member of the Australian community if he were to do so.”

48    When he made his decision the Minister had before him, both directly and indirectly, a range of professional opinions relating to the prospect of Mr Gbojueh re-offending. The opinions had been expressed by persons holding a range of different professional qualifications. Varying opinions were expressed as to the likelihood of Mr Gbojueh re-offending.

49    The Tribunal regarded the professional evidence which had been provided to it (and which had also been provided to the Minister) to be “inadequate” and “far from perfect”. Doing the best he could the member concluded that there was “a low risk” of Mr Gbojueh repeating his criminal conduct.

50    Mr Fallo was a registered psychologist who had assessed Mr Gbojueh over some years. He had prepared a number of reports. In the most recent of those reports, as the Minister recorded, Mr Fallo had expressed the opinion that there was no risk of Mr Gbojueh re-offending. Mr Fallo had, however, in June 2011, expressed the more guarded opinion that there was “a very low likelihood of [him] reoffending.”

51    Among the other reports which the Minister had before him was a pre-treatment assessment report, which had been prepared in August 2009 within the Department of Correctional Services in South Australia. That report which had been signed by three psychologists, including the Principal Clinician in the Department’s Rehabilitation Programs Branch, said that Mr Gbojueh “was found to be in the low risk category relative to other adult male sex offenders on the … risk assessment instrument.”

52    It was for the Minister to determine, on the material before him, whether there was any and, if so, what level of risk of Mr Gbojueh re-offending. He was not bound to accept any particular opinion. Having considered the material the Minister came to the view that there was a risk that Mr Gbojueh “may reoffend”. This was a consideration which he brought into account in exercising his discretion adversely to Mr Gbojueh’s interests. In doing so he did not substitute his opinion for that of experts in the field (assuming the descriptor “expert” to be appropriate in all instances); rather, he had regard to the various assessments (including those submitted by Mr Gbojueh). Having done so, he formed the opinion that Mr Gbojueh might re-offend. That view was open on the material and was not inconsistent with the opinions contained in some of the assessments and in the Tribunal’s reasons that the risk was “low”.

53    In its most recent pronouncements on the “unreasonableness” ground of judicial review, the High Court plurality said that “[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 367. A judgment, based on material, on which reasonable minds might differ, will not fall within this restricted category: cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 647-648 (Crennan and Bell JJ).

54    Mr Gbojueh has failed to establish error by the Minister when dealing with Mr Gbojueh’s risk of re-offending.

DISPOSITION

55    The appeal must be dismissed with costs.

Associate:

Dated:    22 August 2014