FEDERAL COURT OF AUSTRALIA

Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705

THE COURT ORDERS THAT:

1.    The decision of the second respondent made on 21 December 2011 be set aside.

2.    The matter be remitted to the second respondent for further consideration according to law and in light of these reasons.

3.    The first respondent pay the applicant’s costs, if any.

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

REASONS FOR JUDGMENT

1    The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 21 December 2011 affirming a decision of the delegate of the first respondent (the Minister) to cancel the applicant’s visa: Re Applicant 4264 of 2011 and Minister for Immigration and Citizenship [2011] AATA 920.

Background

2    The applicant is a citizen of India who arrived in Australia on 22 March 2009 on a Skilled Independent (Migrant) Subclass 136 visa (Subclass 136 visa), which allowed him to stay in Australia indefinitely. The applicant was accompanied by his wife, Ms Augusta Emima Rathina Sigamani, their son, Marcus Thomson Aldrin Thomas Happymount, born 29 September 2004, and the applicant’s stepdaughter, who is his wife’s daughter by a previous marriage. The applicant has not departed Australia since his initial entry.

3    On 11 January 2011 the applicant was convicted, on a fast track plea of guilty, of nine offences of indecently dealing with, and sexually assaulting, a minor, in his care, who was almost 15 years old at the time the offences occurred.     

4    The maximum prison term available in respect of each count was ten years. Counts 1-6 all occurred on one occasion between 31 January 2010 and 21 April 2010. Sentences of imprisonment of between four and eight months were imposed in respect to five of those counts. The conviction for attempted penetration attracted a sentence of imprisonment for 27 months. Counts 7 and 8 occurred on a separate occasion during the same period and in each case, a term of imprisonment of six months, to be served concurrently, was imposed. Count 9, which also occurred during the same period, resulted in a prison sentence of six months. Count 5, the most serious offence, was made the head sentence of 27 months. The prison terms in respect of counts 1 to 4 and 6 were made concurrent with that sentence. For the purposes of totality the sentence in relation to count 9 was reduced to three months. The sentences in relation to counts 7 and 8 and count 9 were made cumulative upon the head sentence. The overall sentence was thus 27 months plus six months plus three months, a total of 36 months. The applicant was made eligible for parole, as was conceded appropriate by the State. The sentence was ordered to take effect from 21 April 2010 when the applicant had been taken into custody.

5    The applicant was released on parole on 30 January 2013 but immediately taken into Immigration Detention where he has been held since that time. He has accordingly been in prison and detention for more than five years. He has no prior convictions in this country or in India.

6    As a result of his convictions and sentence, the applicant was given a notice of intention to consider cancellation of his visa under s 501(2) of the Migration Act 1958 (Cth) (the Act), the notice being dated 26 May 2011. The notice enclosed various information including ss 501, 501E and 501F of the Act, Ministerial Direction No. 41 – Visa refusal and cancellation under s501 (the Direction), and the transcript of the District Court proceedings on 11 January 2011, including the sentencing remarks.

7    In response to the notice of intention to cancel his visa the applicant provided written submissions and supporting documentation, including various letters in support and a pre-sentence psychological report by psychologist Ms Daniela Barbuzza (Pre-sentence Report).

8    A submission was prepared for consideration by the Minister’s delegate, and on 27 September 2011 the delegate made a decision to cancel the applicant’s Subclass 136 visa. The applicant was notified of that decision by a letter from the Department of Immigration and Citizenship dated 28 September 2011.     

9    The applicant applied to the Tribunal for review of the delegate’s decision. On 21 December 2011 the Tribunal made a decision affirming the delegate’s decision to cancel the applicant's visa.     

10    On 5 February 2013 the applicant lodged an application for a protection visa, and that application was refused by a delegate of the Minister on 17 July 2013. The applicant unsuccessfully sought review of that decision in the Refugee Review Tribunal, and he subsequently sought judicial review of that decision in the Federal Circuit Court of Australia. There was a hearing of that application on 14 August 2014 before Lucev J, and that decision remains reserved.

11    On 23 July 2014 the applicant filed an application for an extension of time to lodge an application for judicial review of the Tribunals decision dated 21 December 2011, together with a draft notice of appeal.

12    On 12 December 2014 the Court ordered that the time for the applicant to file an application for judicial review of the Tribunal’s decision given on 21 December 2011 be extended to 23 July 2014, and that the draft notice of appeal stand as the application for judicial review: Applicant in WAD 230/2014 v Minister of Immigration and Border Protection [2014] FCA 1351.

Grounds of application

13    The amended application for judicial review raises nine grounds. In substance they are as follows:

(1)    The Tribunal’s decision to affirm the decision of the delegate of the Minister to cancel the applicant’s visa was affected by jurisdictional error by not giving primary weight to the best interests of his son; the Tribunal failed to give primary consideration to this issue.

(2)    The applicant did not receive a fair hearing before the Tribunal (particulars omitted).

(3)    The Tribunal’s decision is affected by apprehended and/or actual bias (particulars omitted).

(4)    The Tribunal’s conclusions in the absence of evidence are an error of law; there was no evidence to support the Tribunal’s reasons for decision at [58] and [61]-[63]. These conclusions made by the Tribunal required expert evidence and the Tribunal was not qualified to express such findings in the absence of such expert evidence.

(5)    The Tribunal erred in considering whether Ms Barbuzza was aware of the applicant’s past inappropriate behaviour.

(6)    The Tribunal failed to comply with para 10.1.1(4)(b) of the Direction which states that the following factors are also to be considered: any relevant factors the person provides as mitigating factors.

(7)    The Tribunal wrongly focused exclusively on the applicant’s inappropriate behaviour towards his stepdaughter in India in assessing his risk of re-offending and failed to properly consider the assessment as required by paras 10.1.2(1) and 10.1.2(2)(a) and (b) of the Direction.

(8)    The Tribunal failed to take into account the applicant’s employment links in Australia.

(9)    The Tribunal’s affirmation of the delegate’s decision was taken to be treated as punishing the applicant on top of the price he paid.

Consideration

14    In reviewing the delegate’s decision in this matter pursuant to s 500 of the Act, the Tribunal is required, by s 499(2A) of the Act, to comply with a direction given by the Minister under s 499(1) of the Act. The relevant direction, namely, Direction No. 41 – Visa refusal and cancellation under s501, was given by the Minister on 3 June 2009 and commenced on 15 June 2009. Part A of the Direction:

[P]rovides directions on the application of the character test…set out in section 501(6) of the Act.

15    The Minister, of course, is not bound by the Ministerial direction made under s 499: NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [6] per Allsop CJ and Katzmann J; Tewao v Minister for Immigration and Citizenship (2012) 126 ALD 185 at [10]; Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 at [31], [110]. However, as I mentioned, the Tribunal is so bound: see also Tewao at [10] and Lesianawai v Minister for Immigration and Citizenship (2012) 131 ALD 27 at [8].

16    It is plain enough that, in its reasoning, the Tribunal purported to follow the Direction.

17    I will now turn to the grounds of the application.

Ground 1 - Primary consideration of the best interests of the applicant's son

18    The Tribunal noted at [44] in its reasons that para 10(1)(d)(i) of the Direction sets out as a “primary consideration” what the best interests of the child are as described in the Convention on the Rights of the Child. The Tribunal correctly noted at [72] that there were two children whose best interests must be considered – the applicant’s son and his stepdaughter.

19    There is no challenge concerning the Tribunal’s conclusion that it was clearly not satisfied that the stepdaughter’s best interests militated against cancellation of the visa (at [73]). However, it concluded at [74] that different considerations applied in the case of the applicant’s son. He has lived with his mother, alone, since the applicant was taken into custody. As the Tribunal observed at [75], the applicant’s wife believes that her son misses and needs his father and that she wants him to play a full parental role in their son’s upbringing. The Tribunal also stated that it had no doubt that this was also the wish and intention of the applicant. It also noted the concern of the applicant’s wife that if their son was physically separated from the applicant by reason of the applicant’s removal from Australia, such separation would have a detrimental effect on the child’s future well-being.

20    It seems, as the Minister correctly submits, that the Tribunal, at [76], was inclined to the view that if the applicant were removed from Australia that his wife may not follow him with their son as she did not wish to abandon her daughter. However, as the Tribunal concluded, the wife would be in a difficult financial position in raising her son on her own. The opinion of the Tribunal at [77] was that the applicant’s son is likely to have a more advantageous future in Australia than in India and that it was in the best interests of the applicant’s son if he was to remain in Australia, and that this “primary consideration” weighs against cancellation of the visa.

21    The Tribunal summarised its conclusions regarding the applicable primary considerations at [89], in which it stated, inter alia, that “[a]s regards the primary considerations… the best interests of the child [a reference to the applicant's son] weighs against cancellation of the visa”.

22    The weight to be given to the primary considerations and to the other considerations required to be taken into account is a matter for the Tribunal: see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] and [13]-[14]; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 per Mason J at 41. In Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 303, his Honour Toohey J stated that “[i]t need hardly be said that the decision-maker might treat the best interests of the children as a primary consideration yet, in all the circumstances, refuse the application for resident status.”

23    I accept the Minister’s submissions that the Tribunal’s reasons demonstrate that it did give primary consideration to the best interests of the applicant’s son.

24    This ground, accordingly, fails.

Ground 2 – Did the applicant receive a fair hearing?

25    The particulars to this ground of review claim that the applicant did not receive a fair hearing before the Tribunal because:

(a)    “lack of legal representation in the AAT”;

(b)    “limited and basic ability to communicate with the AAT in English so I could not understand the issues I was required to address”;

(c)    “the interpreter was a Srilankan (sic) Tamil so, there was some trouble in the interpretation. I mentioned this to the Deputy President of the AAT, before the finishing (sic) of the hearing”;

(d)    “the counsel for the Minister sometimes, during the hearing, asked me to respond to his questions directly, not using the interpreter”; and

(e)    “the interpreter left the court room before the finishing (sic) of the hearing”.

(Verbatim without amendment)

26    In SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 his Honour Griffiths J set out at [71]-[81] relevant principles in relation to assessing complaints of mistranslation and non-translation by an interpreter, and in particular referred to the judgments of Allsop CJ and Flick and Robertson JJ in SZRMQ v Minister for Immigration and Border Protection and Another (2013) 219 FCR 212.

27    The applicant did not advance in argument or otherwise examples of mistranslations or non-translations made by the interpreter at his hearing before the Tribunal on 5 December 2011. Nor has he adduced any evidence showing how his limited ability to communicate in English affected his understanding of issues at the hearing, or that he was sometimes asked by counsel for the Minister to respond to questions directly, not using the interpreter, or that the interpreter left the hearing before it had finished.

28    I accept the submission of the Minister that in the absence of any such evidence in the form of a transcription of the Tribunal hearing and evidence as to the translated questions and answers, the Court should not make any finding that the applicant was denied a fair hearing before the Tribunal because of the matters alleged in his particulars to this ground of review.

29    That the applicant was a self-represented litigant does not necessarily lead to a conclusion that he did not receive a fair hearing.

30    The applicant referred to Ruatita v Minister for Immigration and Citizenship (2013) 212 FCR 364. Justice Flick at [57] made observations concerning the care that should be taken by those administering the Act “[w]hen a visa holder may well not be conversant with the English language and even less conversant with legal and factual issues to be addressed…to ensure that those affected are as clearly as possible notified of the issues to be addressed.”

31    There, his Honour was addressing the terms of the initial notice given to Mr Ruatita advising him of the intention to consider whether or not his visa should be cancelled pursuant to s 501(2) of the Act and the subsequent notice advising him that his visa had been cancelled.

32    That is not this case. Here, the applicant sought review by the Tribunal of the delegate’s decision to cancel the applicant's Subclass 136 visa for the reasons given by the delegate in his Statement of Reasons. Thereby, the applicant well knew the issues before the Tribunal.

33    This ground is without substance.

Ground 3 - Apprehended and/or actual bias

34    The particulars provided in relation to this ground of review are as follows:

(a)    “The repeated questioning at the beginning of the hearing about my inappropriate behaviour towards my stepdaughter in India…conceived a wrong idea about rehabilitation and risk of my re-offending.”

(b)    “The AAT pre-judged my application in the light of its expressed views that the risk of my re-offending is higher than ‘low to moderate’ as a result of the pre-sentence report author, psychologist, Ms Barbuzza’s unawareness of my previous inappropriate behaviour towards my stepdaughter in India.”

(c)    “The Tribunal failed to give proper weight to factors in my favour in the light of its pre-determined views about my past inappropriate behaviour and the Tribunal did not give me the opportunity to comment on my rehabilitation.”

(d)    “Even though I have acknowledged my inappropriate conducts (sic) towards my stepdaughter in India, the Tribunal interpreted it that I did not acknowledge it.”

(e)    “The Tribunal was aware of my participation in the Sex Offenders Treatment Program which I only had 3 to 4 weeks left to complete the program. I have also mentioned about the program facilitators’ comments about my full participation and the progress I had been making in the program. Still the Tribunal made an adverse finding about my rehabilitation and my risk of re-offending.”

(Verbatim without amendment)

35    At [53] the Tribunal noted that during his cross-examination the applicant briefly acknowledged that he engaged in inappropriate conduct toward his stepdaughter in India in 2008 but that he then consistently refused to answer further questions regarding that conduct. Then at [61] the Tribunal noted, as a matter of serious concern, the applicant’s refusal to answer questions in cross-examination regarding his inappropriate behaviour towards his stepdaughter in India in 2008. These paragraphs are not in conflict.

36    The applicant further submits that he did answer two questions from counsel for the Minister in relation to what he did to his stepdaughter in India, and that after these two questions he was not asked any further questions about this issue, and that if he had been asked he would have responded appropriately. I am unable to say whether or not this was the case absent evidence in the form of an audio recording of the Tribunal hearing or a transcription of that hearing. This was a matter for the applicant to demonstrate.

37    The applicant has also submitted, consistently with the above particulars, that he gave certain evidence at the Tribunal hearing but that the Tribunal failed to give proper weight to factors in his favour in light of its predetermined views about his past inappropriate behaviour, that the Tribunal did not give him the opportunity to comment on his rehabilitation, that although he had acknowledged his inappropriate conduct towards his stepdaughter in India, the Tribunal interpreted it that he did not acknowledge it, and that although the Tribunal was aware of his participation in the Sex Offenders Treatment Program and that he had also mentioned about the program facilitators’ comments about his full participation and progress in the program, the Tribunal still made an adverse finding about his rehabilitation and his risk of re offending.

38    These matters do not tend to establish reasonable apprehension of bias, nor actual bias. The Tribunal’s reasons for decision do not demonstrate any bias, either apprehended or actual, on the part of the Tribunal. Nor is there any evidence in relation to the Tribunal hearing that could support a finding of either apprehended or actual bias on the part of the Tribunal. Accordingly this ground fails.

Grounds 4, 5 and 7 – Proper consideration of the issue of protection of the community

39    Grounds 4, 5 and 7 are broadly interrelated and it will be convenient to consider them together. These grounds in combination, in effect, challenge whether proper consideration has been given to the merits of the case which the Tribunal was bound to take into account, in particular, the issue of the protection of the Australian community and, relevant to that issue, the risk of the applicant re-offending. Such a challenge is one which may be examined in a proceeding for judicial review: Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409 at 412-413, followed in Vaitaiki v Minister for Immigration and Ethnic Affairs (1997) 150 ALR 608 at 618-619 per Burchett J.

40    Paragraph 10.1 of the Direction provides:

10.1    Protection of the Australian community

(1)    Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.

(2)    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.

41    As the Tribunal at [52] observed, para 10.1.2 of the Direction states:

10.1.2    The risk that the conduct may be repeated

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

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

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

(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; and

(c)    evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.

42    An examination of the likelihood of a person engaging in future conduct which may cause harm is an essential part of any assessment of the risk which that person poses to the Australian community: see Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at [104]. That decision did not involve the Tribunal as it concerned an exercise of the power under s 501(2) by the Minister personally. Justice Mortimer held that the risk of harm to the Australian community is a relevant consideration in the exercise of the power by the Minister: at [88]. In Moana v Minister for Immigration and Border Protection [2015] FCAFC 54 the majority, in obiter, was of the same opinion as her Honour: at [1], [48]-[66].

43    In Tanielu, her Honour at [89]-[104] considered what is involved in assessing risk of future harm and at [94]-[97] drew assistance from the decision of the Victorian Court of Appeal in Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 which considered the task in determining an “unacceptable risk” (of re-offending). That court summarised the task in determining an “unacceptable risk” in this way:

[111] An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.

. . .

[124] Predicting the prospect of a person committing a criminal offence in the future is notoriously difficult. The Act recognises that the prediction of risk is in large part a matter for expert opinion which obliges the court to take into account any assessment report filed. The making of a prediction requires expertise which judges do not have. It calls for observation and assessment of those who commit the particular type of offence and a detailed knowledge of the types of factors, both personal and environmental, which increase or reduce the risk of further offending. The necessary expertise combines the ability to make a qualitative assessment of the individual and the ability to utilise the available quantitative risk assessment instruments. A risk assessment report would ordinarily be at the centre of any court evaluation of the level of risk (emphasis added.)

[125] … The degree of likelihood of the occurrence of the risk, considered in conjunction with the seriousness of the consequences if the risk eventuates, and any other matter the court considers relevant, will determine whether the risk is unacceptable (emphasis added.)

. . .

[130] It is the gravity of the consequences of the offence which the offender is at risk of committing which will ordinarily be the critical factor in the assessment of whether that risk is “unacceptable”. That gravity will depend upon the offender’s likely conduct, which in turn depends upon an evaluation of the particular circumstances which pertain to that offender and not upon generalisations about the general character of the offence or the sentences which are attracted by a relevant offence (emphasis added.)

(Footnotes omitted).

44    Her Honour at [97] made the following further observations concerning the approach of the Court of Appeal in Nigro:

[97]     At [129]–[130], the Court had observed that the placement of an offence on a continuum is not appropriate, because to do so strives for a greater degree of definition than the subject is capable of yielding, in circumstances where there are inherent difficulties in seeking to categorise sexual offences in terms of their gravity. The introduction of an approach based on “unacceptable risk” was designed to introduce flexibility to the evaluative process, based on considerations particular to the individual offence and offender. It went on (at [130]):

It is the gravity of the consequences of the offence which the offender is at risk of committing which will ordinarily be the critical factor in the assessment of whether the risk is “unacceptable”. That gravity will depend upon the offender’s likely conduct, which in turn depends upon an evaluation of the particular circumstances which pertain to that offender and not upon generalisations about the general character of the offence or the sentences which are attracted by a relevant offence.

45    Whilst the Tribunal did not use the expression “unacceptable risk” that, nonetheless, was the effect of its conclusion at [39] that the applicant “continues to present a real risk of re-offending in a similar manner”.

46    In determining the risk that the conduct may be repeated the Tribunal noted para 10.1.2 of the Direction, which I set out above.

47    It then set out that Ms Barbuzza, in her Pre-Sentence Report on the applicant dated 1 December 2010, considered his risk of re-offending in a similar manner as “low to moderate” and that she recommended that the applicant participate in a sex offender treatment program offered by the Department of Corrective Services. The applicant commenced this program on 14 June 2011 and had, as the Tribunal noted at [59], recently completed his participation in it. The Tribunal noted that Ms Barbuzza, to whose opinion the Tribunal said it attached “great weight” on the question of risk assessment, had opined that the applicant was likely to benefit from the treatment under this program for reasons I mention below.

48    It also noted, as I mentioned, Ms Barbuzza’s conclusion in her Pre-Sentence Report that:

[The applicant] is considered to present a low to moderate risk of re-offending in a similar manner in the future, with particular risk situations being unsupervised contact with females similar in age to his current victim, and if he has established a relationship of trust with the children and/or their significant others.

49    That it attached great weight to Ms Barbuzza’s report and opinion, must be taken to include her opinion that the applicant was likely to benefit from such treatment due to what she regarded as his motivation to change his behaviour, his feelings of regret and remorse in relation to his offending and his understanding of victim empathy issues. There is no suggestion whatsoever, on the part of Ms Barbuzza, that the applicant was other than genuine in these respects.

50    The Tribunal observed, however, that the Pre-Sentence Report was made in ignorance of the applicant’s previous inappropriate behaviour towards his stepdaughter in India when, as he admitted to the Tribunal when asked, he had touched her on one occasion on the buttocks. This led the Tribunal to posit that had she known this it “may be that such awareness might have led her to assess the risk of his re-offending as somewhat higher than ‘low to moderate’”. This, of course, is mere speculation on its part. The Tribunal placed, it seems, considerable weight on the fact that the applicant would not, in his oral evidence, answer questions regarding this earlier inappropriate behaviour in 2008 as he did not consider this relevant.

51    The Tribunal did not state what questions he refused to answer. Presumably the Tribunal learned of the inappropriate touching that occurred from evidence given by the applicant’s wife. The applicant readily admitted he had done this. No other allegations of inappropriate conduct were made or put to the applicant.

52    Nonetheless, it was this which caused the Tribunal to have serious reservations regarding the genuineness of the applicant’s expressions of remorse and acceptance of responsibility for his offences. This was so despite the fact that, amongst many others, the Assistant Superintendent of Hakea Prison, Mr Fred Wilson, had written on behalf of the applicant that “deportation…would be most unfortunate…I consider he has taken on board the serious nature of his offence and the upheaval this has created in his own and [his] family [members’] lives”.

53    Mr Wilson was the applicant’s supervisor throughout the entire period of his incarceration in Hakea Prison. His view is consistent with the opinion of Ms Barbuzza in the Pre-Sentence Report in relation to the applicant’s feelings of regret and remorse. Paragraph 10.1.2(b) of the Direction states, concerning the relevant factor of the risk of reoffending, that evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation given by independent and authoritative sources, including professional psychological reports, should be given greater weight. The views of Mr Wilson and Ms Barbuzza lie within these categories.

54    Moreover, the applicant’s written statements to the Tribunal could not be clearer. He wrote:

I am ashamed of my offending behaviour and sincerely regret hurting the people I love. I have been participating fully in treatment options to ensure that such conduct will never again occur. I am currently completing a program (SOTP – Sex Offenders Treatment Program) and have been informed that I am doing very well in my strong goal of rehabilitation. This includes mapping out potential pitfalls and developing awareness of the devastating consequences of further distorted thinking. Above all, I have affected my family and my victim. I can only assist their healing by becoming a better person and a substantive role-model for my son.

. . .

This program helped me to “understand the serious nature of my offence and now comprehend the impact my behaviour had on my step daughter which include (sic) breaching her trust in me and also in males, lowering her self esteem and causing her psychological problems. I am deeply regretful that my actions have caused such trauma”.

Also the program helped me to identify myself and to recognise the risk factors and how to cope with it and to avoid reoffending. Now I can recognise and challenge precarious thoughts and interpretations of a situation that influence (sic) my feelings and reactions. I have learnt lapse and relapse prevention strategies.

55    The applicant gave further evidence of the Sex Offenders Treatment Program in which he participated. He stated:

As recommended in the judicial sentencing statement, I am participating and benefiting from the medium intensity sex offenders treatment program (S.O.T.P). Now my offending behaviour is being addressed and diminished through active participation and deep reflection of my offending behaviour.

. . .

I have been acknowledged by the S.O.T.P facilitators that I am doing very well towards addressing my offending behaviour and promoting rehabilitation. The facilitators in the mid group interview commented that “my careful and thoughtful insight shows my contribution and participation in the program”. Kindly see the enclosed copy of my statement of perception of SOTP (Intervention Recommendation).

56    The Treatment Completion Report concerning the effects of his involvement in this program was, to the knowledge of the Tribunal at that time, due to be released in the week commencing 19 December 2011. Such was stated in the Parole Assessment Report dated 6 September 2011 which was before the Tribunal.

57    However, the Tribunal did not delay its decision pending the receipt of this most important report, despite Ms Barbuzza’s opinion which was, relevantly, to the effect that her low-medium assessment of the risk of the applicant re-offending “in a similar manner” was likely to be affected by the benefit she anticipated the applicant would obtain from his participation in the program.

58    Further, Ms Barbuzza’s assessment of risk was directed to the applicant re-offending “in a similar manner”. The offences were committed over a relatively short period and six of the nine were committed on one day during this period. They all involved his stepdaughter. She is now 20 years old although relevantly she was 16 years old when the Tribunal delivered its decision. She no longer lives nor wishes, in the future, to live with her mother and is in foster care. The applicant has stated that he wants to provide financial help for her as he did from very limited resources whilst in prison, but has undertaken not to contact her. There is no evidence that the applicant is likely to be in unsupervised (or supervised) contact with females aged 13 or 14 with whom he might establish a relationship of trust. He will be living with his wife and young son. And, as Ms Barbuzza observed in her Pre-Sentence Report “[t]here is nothing to suggest that [the applicant] has an ongoing sexually deviant interest in children”. These very facts, pertinent to the risk of the applicant re-offending were not taken into account, in this context, by the Tribunal. They should have been considered.

59    Whilst the Tribunal said it attached great weight to Ms Barbuzza’s report and opinion, in truth it did not. It did not avail itself of the Treatment Completion Report despite knowing that the applicant had completed the Sex Offenders Treatment Program and that this Report was due to be released in the near future – a report which was foundational to any reasonable appreciation of Ms Barbuzza’s prognostication as to the risk of the applicant re-offending. It then, without relevant expertise in this area, concluded at [62] that it was not satisfied that the applicant had made substantial progress towards his rehabilitation. That view was contrary to the opinion of the Assistant Superintendent of Hakea Prison and the uncontradicted evidence of the applicant that the facilitators in the program had made very positive comments concerning his participation.

60    Assessments of risk, as was observed in Nigro at [124] and adopted with apparent approval by Mortimer J in Tanielu at [96], require expertise which judges do not have. Paragraph 10.1.2(2)(b) of the Direction recognises that the assessment of risk of re-offending is pre-eminently a matter for expert opinion although of course the Tribunal is required to make findings in light of this.

61    Accordingly, the Tribunal did not properly consider the applicant’s case so far as concerned the assessment of the risk of his re-offending. It failed to do this in two respects.

62    Moreover, the Tribunal did not make any express findings as to the likelihood of the applicant re-offending. Rather, at [62] of its reasons, having regard to the Pre-Sentence Report (in light of its own non-expert assessment as to his rehabilitation), it said that it was of the opinion that the “applicant continues to present a real risk of re-offending in a similar manner”. This is not a finding as to the likelihood of the applicant re-offending. At best it is a statement of the obvious but without any meaningful qualitative content.

63    What is a “real risk”? If it is shorthand for saying, as Ms Barbuzza assessed it – “a low to moderate risk of re-offending in a similar manner”, then that opinion was always expressly subject to review following the applicant’s completion of the Sex Offenders Treatment Program. The Tribunal knew this yet did not avail itself of the Treatment Completion Report then shortly due.

64    It did not make a qualitative assessment of risk at all and failed to consider, as I have explained, a number of factors personal to the applicant which would have relevantly and necessarily informed such an assessment. Its observations were, at best, mere generalisations concerning offences of the kind committed by the applicant. Neither the Minister, nor the Tribunal, said that the offences were so serious that any risk at all was an unacceptable risk. In any event, I do not consider there to be grounds for so concluding.

65    The Minister failed to properly consider the applicant’s case in these respects and his exercise of power in cancelling the applicant’s visa was, for that reason, without jurisdiction.

Ground 6 – Did the Tribunal fail to comply with para 10.1.1(4)(b) of the Direction?

66    The Tribunal, as is apparent from [8] and [47] of its reasons, was clearly aware of the requirement of para 10.1.1(4)(b) of the Direction to have regard to any relevant factors that the person provides as mitigating factors in relation to the seriousness and nature of the relevant conduct.

67    The applicant contends that the Tribunal’s reasons at [50] failed to properly consider the mitigating factors which were before the Tribunal, being his oral evidence and in his written statement dated 7 November 2011 at page 2 under the heading “The seriousness and nature of the conduct”. He also refers to [11] of the Tribunal’s reasons, in which the Tribunal set out the applicant’s statement dated 7 November 2011.

68    At [50] of its reasons the Tribunal noted that the applicant’s conduct in perpetrating the offences involved serious criminality on his part, and the seriousness of his conduct in committing those offences was reflected in the sentences of imprisonment imposed, resulting in a total effective term of imprisonment of three years. Such reasoning does not demonstrate any failure by the Tribunal to comply with para 10.1.1(4)(b) of the Direction.

69    The Tribunal was to consider any relevant factors the persons provides as mitigating factors in relation to the seriousness and nature of the conduct the subject of the offences.

70    Here, the applicant claimed in his statement of 7 November 2011 that a mitigating factor was that the psychological assessment submitted to the Court indicated that he suffers from an “inadequacy of his genitalia and sexual competency”. This is a reference to the second paragraph on page 2 of the Pre-Sentence Report in which Ms Barbuzza noted that the applicant “became obsessively sensitive about the adequacy of his genitals and sexual competence.” This was a matter raised by the applicant’s counsel at his sentencing hearing, but was not advanced by his counsel as a mitigating factor. Rather, his counsel said that this “may have contributed to his offending”, and that it provided “some explanation and insight into the offending behaviour.”

71    Nor was this a matter that the sentencing Judge raised as a mitigating factor in considering the appropriate sentences for the offences committed by the applicant.

72    It was not incumbent upon the Tribunal to specifically refer in its reasons to the applicant’s claim in his 7 November 2011 statement that a mitigating factor was Ms Barbuzza’s assessment in the Pre-Sentence Report that he became obsessively sensitive about the adequacy of his genitals and sexual competence, and no error of law arises because it did not do so.

73    In relation to the applicant’s claim to have raised mitigating factors in his oral evidence before the Tribunal, once again the applicant has not adduced any transcript or audio evidence of the hearing to show any additional claims made as to mitigating factors in relation to the seriousness and nature of his conduct.

Ground 8 – Did the Tribunal fail to take into account the applicant’s employment links in Australia?

74    In support of this ground of review the applicant refers to evidence before the Tribunal that he was engaged by Jako Industries Pty Ltd from 15 April 2009 to 2 October 2009 and that company’s subsequent letter dated 28 July 2011 stating that they would give him every consideration should a position for a trades assistant become available in their factory.

75    The applicant also refers to another letter which was before the Tribunal dated 22 November 2011 from his friend, Mr Janarthanam Shankar, who stated that he could help the applicant get a job in the welding field and would assist him by means of transportation when he was released from prison.

76    That the advice from Jako Industries Pty Ltd as to the applicant’s previous employment and possible future employment, and the advice in Mr Shankar's letter of 22 November 2011 were not specifically referred to by the Tribunal in the section in its reasons under the heading of “Analysis” does not mean that the Tribunal did not have regard to that evidence.

77    The Tribunal noted at [9] that among the evidence before it were the “G Documents”, G25 being a letter from Mr Jakovich of Jako Industries Pty Ltd, Exhibit A12, being a copy of the letter from Mr Jakovich dated 28 July 2011, and Exhibit A5, being a copy of the letter from Mr Shankar dated 22 November 2011.

78    The applicant called in aid this Court’s decision in Sauvao v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 137 ALD 507. However, that case was concerned with para 9.2(1)(b) of the Minister’s subsequent Direction No. 55 which came into operation on 1 September 2012 and which provided that, when considering the strength, duration and nature of the applicant’s ties to Australia, the decision-maker must have regard to the “strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia” (emphasis added).

79    In this matter, the Direction did not contain any such similar provision requiring a decision-maker to have regard to employment links.

Ground 9 – Was the Tribunal’s affirmation of the delegate’s decision a punishment?

80    The applicant refers to [84] of the Tribunal’s reasons in relation to this proposed ground.

81    At [84] of its reasons the Tribunal accepted that the applicant would suffer great emotional distress if he were physically separated from his wife and son by reason of his removal from Australia, accepted that he would be likely to suffer economic, social and vocational hardship if he were returned to India, and noted the applicant’s concerns for his personal safety in India because of expected retribution from his stepdaughter’s paternal relatives. The Tribunal then concluded that:

Such distress and hardship would, however, be the ultimate product of [the applicant’s] repugnant criminal conduct in Australia and the Tribunal does not attach significant weight to that matter.

82    As the Minister correctly submits, the Tribunal’s assessment of the weight to be given to the matters identified by it at [84] was a matter for the Tribunal. No error of law is disclosed in the Tribunal’s reasoning in this respect.

Conclusion and orders

83    It follows that the application will be upheld. The decision of the Administrative Appeals Tribunal made on 21 December 2011 will be set aside and the matter remitted to the Tribunal for further consideration according to law and in light of these reasons.

Associate:

Dated: 14 July 2015