FEDERAL COURT OF AUSTRALIA

Cotterill v Minister for Immigration and Border Protection [2015] FCA 802

REASONS FOR JUDGMENT

1    The applicant, Mr Cotterill, seeks judicial review of a decision of the respondent, the Honourable Peter Dutton MP, Minister for Immigration and Border Protection, made on 17 April 2015 under s 501(2) of the Migration Act 1958 (Cth) to cancel Mr Cotterill’s absorbed person visa.

2    Mr Cotterill is a citizen of the United Kingdom. He was born on 4 June 1943 and arrived in Australia at the age of 7 with his parents and an older sister. Mr Cotterill has resided in Australia since then and was allowed to remain permanently in Australia as the holder of an absorbed person visa. Persons who are not citizens of Australia holding an absorbed person visa, however, remain subject to the provisions of the Migration Act, including the character provisions. Section 501(2) confers upon the Minister a discretion to cancel a visa if the Minister reasonably suspects that the person holding the visa does not pass “the character test”. Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record as defined by subsection (7). That subsection provides that a person has a substantial criminal record if, amongst other matters, the person has been sentenced to a term of imprisonment of 12 months or more.

3    Minister Dutton decided on 17 April 2015 to exercise his discretion under s 501(2) to cancel Mr Cotterill’s absorbed person visa. On 26 November 2012 Mr Cotterill had pleaded guilty to, and was sentenced on, 5 charges relating to sexual offences against his children dating back to a period ending in the mid-1970s. He was sentenced on 26 November 2012 to 12 months imprisonment on each charge. The sentence was partially suspended with three months to be served in prison and 9 months suspended for a period of 12 months. The notices of the orders which were made recorded that the sentencing magistrate would have imposed a sentence of two years with a minimum term of one year but for the plea of guilty which Mr Cotterill had entered. The only other convictions recorded against Mr Cotterill date from 1 February 1961 when he was sentenced to a term of imprisonment on charges of shop breaking and stealing and the illegal use of a motor vehicle.

4    Mr Cotterill served his term of imprisonment and was released in February 2013. Mr Cotterill was informed on 1 September 2014 that consideration was being given to the cancellation of his visa under s 501(2) of the Migration Act. On 17 April 2015 the Minister decided to cancel Mr Cotterill’s visa and on 22 April 2015 Mr Cotterill was taken into detention and he has been detained since then.

5    Mr Cotterill relied upon two grounds in his application to review Minster Dutton’s decision. The first ground was that the decision was infected with jurisdictional error because it was “unreasonable, illogical and/or irrational”. The second ground overlapped with the first ground to some extent and was that the Minister had not given proper or genuine consideration to the risk of harm posed by Mr Cotterill. The grounds as stated were:

1.    The Respondent’s decision was unreasonable, illogical and/or irrational and thereby infected with jurisdictional error.

Particulars

(a)    The Respondent failed to assess and/or evaluate the risk of future harm presented by the applicant; and/or

(b)    The Respondent’s finding that the applicant represented an “unacceptable risk of harm to the Australian community” was unreasonable and lacks an evident and intelligible justification; and/or

(c)    The Respondent’s finding was not supported by the material before it.

2.    The Respondent failed to give proper or genuine consideration to the risk of harm posed by the applicant’s continuing presence in Australia, or misunderstood the correct approach to the assessment of the risk of harm.

Particulars

(a)    The applicant repeats and refers to the particulars in Ground [1].

(b)    There was no genuine consideration on the merits of the likelihood of the applicant reoffending or the likelihood or risk of future harm.

It was submitted for the Minister that there was no jurisdictional error in the decision and that there had been no failure to give proper or genuine consideration by the Minister to the risk of harm posed by Mr Cotterill’s continuing presence in Australia.

6    The first ground of challenge was that the Minister erred in his consideration of the “risk to the Australian community” as a factor in reaching his decision. Minister Dutton said at [62] of his reasons for decision:

In reaching my decision I concluded that Mr Cotterill represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any counterveiling considerations above.

An issue has arisen in other cases about whether the risk of harm to the Australian community was a mandatory relevant matter for the Minister to consider. Section 501(2) of the Migration Act confers a broad discretion on the Minister to cancel a visa and does not expressly identity any factor which must be taken into account in the exercise of the discretion. In Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 Mortimer J held at [154] that the risk of harm to the Australian community posed by the subject of the visa cancellation was a matter which the Minister was obliged to take into account in exercising the power under s 501(2). The same conclusion was reached by a majority of the Full Court in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54 but for different reasons: see at [48] per Rangiah J (with whom North J agreed; Jessup J dissenting on this issue): cf Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705, [42]-[44].

7    The question of whether the risk of harm was a mandatory relevant consideration has also arisen in other cases. In Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 the Full Court referred at [36] to there remaining “unresolved tension between the views of North and Rangiah JJ in Moana and the observations of Kiefel and Bennett JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Huyhn [2004] FCAFC 256, (2004) 139 FCR 505”, and at [37] their Honours in Ayoub expressed reservations with respect to some aspects of the reasons for decision of Mortimer J in Tanielu but said that it was unnecessary in Ayoub to resolve the competing views. It is also unnecessary for me to consider those issues or whether the risk of harm was a mandatory requirement for the Minister to consider in the present case because the Minister accepted that I was bound to follow the decision of the majority of the Full Court in Moana (although the Minister made a formal submission that the majority judgment in Moana was erroneous on the question of whether the requirement to consider the risk of harm was a mandatory requirement) and because in the present case the Minister had considered the risk of harm and had based his decision upon that consideration. In the present case, therefore, the question is not whether the risk of harm was a matter that the Minister was obliged to consider as a mandatory requirement but, rather, whether he had considered that factor without committing jurisdictional error.

8    The statement of reasons for the cancellation of Mr Cotterill’s visa which was signed by Minister Dutton set out the facts which he took into account and was followed by these conclusions:

CONCLUSION

59.    I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act and (2) all other evidence available to me, including evidence provided by, or on behalf of Mr COTTERILL.

60.    Mr COTTERILL has committed serious crimes that have caused his victims to suffer serious harm. In particular, I find that Mr COTTERILL’s sexual offending against his three young children, vulnerable members of the community, is contrary to values held by Australian society. Such a person should generally expect to forfeit the privilege of staying in Australia.

61.    I found the above consideration outweighed the countervailing considerations in Mr COTTERILL’s case, including his long and deep ties to Australia, especially to his partner of 30 years who is unwell and requires his care. I have considered his age of 71 years, his poor health, long employment history, social and community ties to Australia, the adverse impact his removal would have on his elder sister and family, on his five adult daughters, two adult stepchildren and two adult step grandchildren, as well as the best interests of his 26 grandchildren, six great grandchildren and two step grandchildren. I have given weight to the consideration that higher tolerance should be accorded to him given that he has lived here for 64 years arriving as a seven-year-old child, and had lived in Australia for at least 12 years when he commenced the sex offences. I have also given weight to the fact that he has spent some 38 years in the community since his last offence, has spent some two years in the community since his release from prison, and has completed a 12 month good behaviour bond. I have also considered the length of time Mr COTTERILL has made a positive contribution to the Australian community and the consequences of my decision for minor children and other family members.

62.    In reaching my decision I concluded that Mr COTTERILL represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.

63.    Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Mr COTTERILL’s Absorbed Person visa under s501(2) of the Migration Act.

It was contended for Mr Cotterill that these conclusions revealed an erroneous assessment of the risk to the Australian community posed by the continued presence of Mr Cotterill in Australia.

9    The first step in Mr Cotterill’s submission was that the Minister had erred in his consideration of Mr Cotterill’s offending as “very serious”. The Minister had been invited to reach that conclusion by the submission prepared for him by the officers of the Department of Immigration and Border Protection which had set out the issues for his consideration on the possible visa cancellation. In that regard it was submitted for Mr Cotterill that there was no assessment of the finding, and no clear basis for the Minister to find, that the offending on which Mr Cotterill had been found guilty was “very serious” in view of the material that was before the Minister. It was next submitted for Mr Cotterill that the finding of the offending as “serious” did not, in turn, support a conclusion of a risk, even a low risk, of reoffending. In particular it was submitted that there was no assessment, evaluation or balancing of relevant factors bearing upon the risk of reoffending and the likelihood of future harm.

10    In Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 Mortimer J had also analysed what was “involved in assessing risk of future harm” when that was a matter which was taken into account in making a decision. At [104] her Honour accepted a submission that 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 that person poses to the Australian community”. The majority of the Full Court, however, in Moana took a different view. Rangiah J (with whom North J agreed) considered the view which Mortimer J had expressed that the risk of harm required an examination of the likelihood of a person engaging in future conduct but concluded that the Minister was not required to engage in an evaluation of the likelihood of a person engaging in future conduct which may cause harm. His Honour said at [71]-[74]:

71    If the Minister is to be held to be bound to examine the likelihood of a person engaging in future conduct which may cause harm in every exercise of the discretion under s 501(2), then an implication to that effect must appear from the subject matter, scope and purpose of the Act. It is not enough to argue that principles concerning other statutory provisions with a protective purpose must apply analogously to s 501(2). It is one thing to conclude, as I have, that the Minister must consider the risk of harm, but it is a step removed to decide that the statute contains an implication that the Minister must evaluate the risk of harm in a particular way.

72    The cases concerning s 501A relied on by the Minister (see para [63]) establish that the seriousness of an offence may, of itself, lead the Minister to conclude that a visa should be cancelled in the national interest. I consider that the seriousness of an offence or other relevant past conduct may also lead the Minister to conclude that a visa should be cancelled in the discretion under s 501(2) without evaluating the likelihood that the visa holder will reoffend or engage in harmful conduct. It is implicit in s 501 that Parliament considers that a person who does not pass the character test poses a risk of harm of some kind, although that does not lead to a presumption that the discretion should be exercised in a particular way. In a particular case, however, the Minister may take the view the seriousness of the offence or conduct means that any risk is intolerable. It follows that in exercising the discretion in s 501(2), the Minister is not bound to engage in an evaluation of the likelihood of a person engaging in future conduct which may cause harm.

73    Contrary to the appellant’s submission, I doubt whether Mortimer J held that the Minister must evaluate the static and dynamic factors personal to an individual that may affect the risk that the person may pose when exercising the discretion. I think that her Honour was merely illustrating the factors of the type that might influence the likelihood of a person engaging in future conduct which may cause harm. In any event, there is direct authority against the proposition that the Minister is bound to consider factors personal to the visa holder: Huynh at [74] per Kiefel and Bennett JJ. I am unable to see how s 501(2) can be construed to require the Minister to take into account such personal factors when considering the risk of harm.

74    I consider that the Minister is not bound to conduct an evaluation of the likelihood of the visa holder engaging in future conduct that may cause harm when exercising the discretion under s 501(2). That is not to say that evaluation of such likelihood will not be centrally relevant to the exercise of the Minister’s discretion in most cases. The exercise of the discretion to cancel a visa without examining the likelihood of future harm may in some circumstances be unreasonable, in the sense of lacking an evident and intelligible justification: cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ. However, s 501(2) cannot be construed to require the Minister to take into account that likelihood in all cases.

Counsel for Mr Cotterill placed particular emphasis upon the passage at [74], contending, that notwithstanding the apparent difference of view between his Honour in Moana and Mortimer J in Tanielu, that his Honour had “made clear” that an evaluation of the likelihood of a person engaging in future conduct would be “centrally relevant to the exercise of the Minister’s discretion in most cases”. In that regard the submissions for Mr Cotterill emphasised the concluding words in [71] as suggesting that what his Honour had rejected was an implication that the Minister was obliged to evaluate the issue of harm “in a particular way” rather than expressing a conclusion that the Minister was obliged to undertake an evaluation.

11    His Honour’s observation at [74] drew attention to the test of unreasonableness to be drawn from the dicta in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ that judicial review on the grounds of unreasonableness may be made out where there is lacking an “evident and intelligible justification”. In other words that the focus of inquiry to a challenge of the kind in question is whether the exercise of the discretion lacked an “evident and intelligible justification” and that such an inquiry might call for an evaluation of the likelihood of future harm. In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Hayne, Kiefel and Bell JJ said at [76]:

As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

In my view the Minister’s decision was not unreasonable, illogical or irrational in that sense. It may be a harsh decision and one which many might not have made in his position but a severe or harsh decision is not one which lacks “evident and intelligible justification”. Minister Dutton did consider the risk of harm to the Australian community and also the likelihood of future harm if Mr Cotterill remained in Australia and concluded that Mr Cotterill represented an unacceptable risk of harm to the Australian community which in the Minister’s view outweighed any of the countervailing considerations in favour of Mr Cotterill remaining in Australia. In reaching that conclusion Minister Dutton gave effect to a policy with which many might reasonably disagree; but identifying a severe or harsh reason for a decision describes its reason rather than shows that there was none.

12    The Minister found that the offences which Mr Cotterill had committed were very serious. In making that finding Minister Dutton had available material which had been provided by Mr Cotterill, as well as copies of the court orders which had been made and which contained details of the nature of the charges which had been brought against him. The evidence before Minister Dutton included the five convictions for unlawful or indecent assault and gross indecency on vulnerable minors (being his three children) over an extended period of time. The evidence also included statements in the court orders recording the magistrate’s decision that a sentence of two years imprisonment with a minimum term of one year would have been imposed upon Mr Cotterill if he had not pleaded guilty. The court orders also recorded that Mr Cotterill was placed on the sex offender register with a requirement to report to Victoria Police for a period of 15 years.

13    The finding that the offences were serious was a question of fact for the Minister to determine. In Te Puke v Minister for Immigration and Border Protection [2015] FCA 398 Wigney J observed at [96]:

It was entirely open to the Minister to form his own view about the seriousness of the offence based on the objective facts. It was also entirely up to the Minister to decide what facts he considered relevant to that issue and the weight to be afforded to them.

The Minister concluded at [60] that Mr Cotterill had committed “serious crimes” upon evidence that enabled him to reach that conclusion. It may be, as was submitted on Mr Cotterill’s behalf, that Minister Dutton did not have the details of the circumstances of the particular offences with which Mr Cotterill had been charged, but what the Minister did have was sufficient for the findings he made. Minister Dutton also had, and took into account, the material which Mr Cotterill had supplied in respect of the alleged crimes. The Minister set out the following facts under the heading “Criminal Conduct” in his reasons:

Criminal Conduct

9.    In making my decision I considered the Government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens. I took into consideration that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are, and have been law abiding.

10.    In considering the nature and seriousness of Mr COTTERILL’s criminal offending I note that sexual offences are viewed very seriously, and that crimes against vulnerable members of the community, such as minors, are also serious.

11.    On 1 February 1961, Mr COTTERILL was convicted of shop break and steal for which he was sentenced to 12 months hard labour. He also received a concurrent sentence of six months for illegally use motor car, and a cumulative term of three months imprisonment for three counts of illegally use motor car. He had no other convictions for about 51 years until the convictions for sexual offending. He has not offended since then.

12.    Regarding the sexual offending, Mr COTTERILL committed one count of indecent assault-male under 16 (prior 1981) from 1 January 1973 to 31 December 1974 when he was between 29 and 31 years of age, and another count of indecent assault-male under 16 (prior 1981) from from 20 July 1973 to 19 July 1974 when he was between 30 and 31 years of age.

13    Mr COTTERILL committed the offence of unlawfully/indecently assault a girl from 7 December 1975 to 6 December 1976 when he was between 32 and 33 years of age.

14.    He committed the two offences of gross indecency in presence of girl under 16 from 1 January 1963 to 31 December 1974 when he was between 19 and 31 years of age.

15.    While sentencing remarks are unavailable, Mr COTTERILL has claimed that three of his eight children brought the trumped up charges against him. His partner of 30 years stated that he was wrongly accused of molesting his three children. One of his daughters said that the accusations made by her three siblings “were fabricated with the help of” her and their biological mother.

16.    Mr COTTERILL stated he did not do anything to his son, but admitted to being naked when speaking to him about sex, that he did briefly expose himself to his eldest daughter, and that he did not offend against his other daughter as he “was working 2 jobs round the clock and was rarely home”.

17.    For the five offences, the court imposed a concurrent term of 12 months imprisonment and partially suspended the sentence after three months had been served. The court ordered that Mr COTTERILL report to police for a period of 15 years in accordance with the Sex Offender Registration Order.

18.    To reflect the overall criminality in the case, the court noted that but for the pleas of guilty the sentence imposed on each count would have been two years with a minimum of one year.

19.    I note the information Mr COTTERILL provided regarding the circumstances of his sexual offending. I adopt the judicial findings and view Mr COTTERILL’s sexual offending as very serious. Moreover, I view the crimes against the three child victims – vulnerable members of the community – heighten the seriousness of his conduct.

20.    I find that the convictions and the overall disposition of 12 months imprisonment, as well as the order that Mr COTTERILL report to police for a period of 15 years in accordance with the Sex Offender Registration Order reflect the seriousness of his offending.

This information was relevant to whether the offences were serious and enabled the Minister to form the view that the offences committed by Mr Cotterill were serious. In Mrayhej v Minister for Immigration and Border Protection (No 2) [2015] FCA 691 Foster J stated:

56    The Minister took the view that the sex offences were “very serious”. The Minister was not bound to regard those offences as at the bottom end of the scale of sexual offences merely because the sentencing judge had described them in that way.

The Minister’s finding that Mr Cotterill’s offences were serious was not infected by jurisdictional error, in the sense of being unreasonable, illogical or irrational, or by him adopting a view on the material available to him without first undertaking an evaluation of the offences within a range of offences of that kind: cf Stretton v Minister for Immigration and Border Protection (No 2) [2015] FCA 559 at [57].

14    The Minister went on to find that the serious crimes of which Mr Cotterill had been convicted had caused his victims to suffer serious harm. This was reflected by the instigation of the proceedings against Mr Cotterill which led to his conviction for the crimes for which he was charged. Minister Dutton said in [60] of his statement of reasons (quoted above) that Mr Cotterill had committed serious crimes that had “caused his victims to suffer serious harm”. In particular Minister Dutton found that the offences were against his three young children who were vulnerable members of the Australian community. Counsel for Mr Cotterill submitted that there was no reasonable or rational basis for finding that the commission of the offences by Mr Cotterill had caused his victims to suffer serious harm but accepted, correctly, that it may be reasonable to assume that this type of offending by a parent is harmful. The Minister’s finding that the crimes of which he was found guilty had caused his victims to suffer serious harm was open to him upon the material available. It is of the nature of such crimes against children that they will be caused harm without the need for direct evidence of actual harm. It was not a finding that required the Minister to obtain any evidence, or to have any further knowledge, of the foundational conduct of the particular offences charged for the Minister to conclude that the offending, in fact, did cause serious harm.

15    Minister Dutton went on to consider the risk and consequences of Mr Cotterill reoffending and concluded that there was a low risk of reoffending but that serious harm would result to a member of the Australian community if Mr Cotterill were to reoffend in a similar manner. The issues paper which had been supplied by the Department to the Minister for his decision had contained material in support of the finding that Mr Cotterill did not represent a significant risk. It included the fact that for a period of about 51 years from 1 February 1961 to 26 November 2012 Mr Cotterill had no convictions other than those for the offences against his children, and that a period of some 38 years had passed without further criminal or other serious misconduct since the last offence for which he was charged. In that context the issues paper went on to inform the Minister:

66.    In considering Mr COTTERILL’s rehabilitation and the risk of him re-offending, you may wish to be mindful of the comments made by Matthews J (the then President of the AAT) in Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51] that:

“Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending”

67.    In view of Mr COTTERILL’s convictions for serious sexual offending against minors, you are free to find that there is low risk that he may re-offend, notwithstanding his statement, supporting character references and lack of antecedents. You may also have regard to Mr COTTERILL’s age, his physical frailty and the fact that he is subject to reporting requirements to police.

68.    ln considering that Mr COTTERILL may re-offend, it is open to you to be mindful of the fact that serious physical and psychological harm could result to a member of the Australian community if he were to re-offend in a similar manner.

The Minister concluded, consistently with the Departmental paper which had been given to him for his consideration, that Mr Cotterill represented a low risk of reoffending notwithstanding the complete absence of any offending for some 38 years. The Minister may have been influenced by the short passage from Lam in reaching that conclusion. In Stretton v Minister for Immigration and Border Protection (No 2) [2015] FCA 559 Logan J drew attention to the disservice that may be done to the Minister from quoting the passage from Lam in isolation from its context. His Honour said at [42]-[43]:

42    The Minister’s approach, evidenced in paragraph 54 of his reasons, may well have been inspired by a suggestion put to him by his department in the Issues Paper (paragraph 39) that he “may wish to be mindful” of an observation made by Matthews J, in her then capacity as President of the Administrative Appeals Tribunal, in Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56; (1999) 28 AAR 431 at 442 (Lam):

Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending.

By quoting this sentence in isolation, the department may well, with respect, have done the Minister a disservice. Put in context, what her Honour stated was this:

Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending. However in the applicant's case, for the reasons I have given, I consider that the risk of recidivism is considerably lower than one would expect of a person with his record of behaviour. Overall, I consider that the risk of the applicant committing further offences is a low one.

43    This paragraph in the reasons of Matthews J in Lam was the culmination of a comprehensive evaluation by her Honour of the nature of the offending conduct (a serious drug offence) and of Mr Lam’s character and personality, including whether he was truly remorseful and contrite. To quote the first sentence of that paragraph in isolation was to give her Honour’s observation a prominence and meaning that, as the paragraph in which it appears discloses, Matthews J did not intend. It was also to divert attention from the fact that, notwithstanding the observation which she made in that first sentence, Matthews J, self-evidently, had undertaken an evaluation in which she had balanced risk against countervailing factors.

The cautionary words of Logan J draw attention to the need for care when applying dicta from other cases with different circumstances. It should not be thought that Matthews J in Lam was purporting to lay down an immutable truth to be applied in all circumstances without the need to consider the particular circumstances of each case. There are many circumstances where it could clearly, or reliably, be said that there was no risk of reoffending by a person who had once offended, such as, for instance, where age, infirmity, physical incapacity, or other physical constraints and circumstances were such that reoffending was not possible notwithstanding past misconduct. However, that does not mean that the Minister was not able in this case to conclude that there was a low risk of reoffending although others might reasonably conclude that Mr Cotterill posed no risk. It is not for the Court to substitute its views for those of the Minister.

16    The Minister in this case did not conclude that the risk of Mr Cotterill reoffending was low without a consideration of the factors bearing upon the evaluation of that risk. The Minister’s finding that the risk of reoffending was “low” is found in [33] of the Minister’s statement of reasons in a sentence which began with the Minister’s statement of having taken into account the matters in the two paragraphs which preceded that paragraph. The matters he took into account were set out from paragraph [31] which expressly began with the Minister identifying the facts taken into account in “considering the risk [of] Mr Cotterill’s conduct [being] repeated”. Those matters included the fact that Mr Cotterill was not required to undertake any sex offenders courses during his three months imprisonment, that for about 51 years he had no other convictions, that he had not offended since his November 2012 convictions and that he had been involved with a men’s Christian support group since his release from prison in February 2013. The Minister also took into account in that context the character references from Mr Cotterill’s friends and family, his age, his medical condition, his physical frailty, and the fact that Mr Cotterill was subject to reporting requirements to the police. Next, paragraph [32] began with Minister Dutton identifying the matters to which he gave weight in “considering the likelihood of Mr Cotterill engaging in further criminal or other serious conduct”. Those matters included the fact that Mr Cotterill has spent a period of some 38 years in the community since his last offence in 1976, two years in the community since being released from jail in February 2013 after serving three months imprisonment and having completed a 12 month good behaviour bond. Many might reasonably conclude from these facts that Mr Cotterill posed no future risk of reoffending rather than that he posed a low risk, but the Minister’s finding of a low risk was one that was open to him: see also Graff v Minister for Immigration and Border Protection [2014] FCA 1125 at [37]. He was not persuaded that there was no risk in view of the fact of Mr Cotterill having offended. The Minister was not required to express his view in percentage terms and it is difficult to be precise about the risk of reoffending: Coderre v Minister for Immigration and Border Protection [2014] FCA 769 at [36].

17    In Te Puke v Minister for Immigration and Border Protection [2015] FCA 398 Wigney J said at [83]-[88]:

83    In Roesner, as in this matter, the applicant claimed that the Minister had failed to make an assessment of the likelihood of the applicant re-offending. This contention was based on the fact that the Minister found only that there was “a risk” of re-offending which the Minister appeared to assess as a low risk. This finding appeared to be based solely on the fact that Mr Roesner’s ability to refrain from re-offending in the community was “untested”. The Minister then concluded that even a low risk of re-offending was “unacceptable” to the Australian community.

84    Tracey J referred to Tanielu and concluded that the Minister had not fallen into the same sort of error. His Honour said (at [20]):

In the present case the Minister had limited material before him to inform his assessment of the likelihood of the applicant reoffending. This was not a case where, for example, the applicant had a history of recidivism, had failed to heed warnings or had refused to participate in rehabilitation programmes: cf Moana v Minister for Immigration and Border Protection [2014] FCA 1084 at [18] (Davies J). Nor did the Minister have available to him any recent professional assessments of the applicant’s mental condition. Despite the paucity of the material before him the Minister did not fall into the same error as his predecessor had done in Tanielu. He did undertake an evaluation of the likelihood of the applicant again committing a serious criminal offence. So much is evident from the passages of his reasons at [17], [33] and [34] (quoted above at [13] and [14]). In substance the Minister reasoned that, although the risk of the applicant reoffending was low, even such a low risk was unacceptable given the magnitude of the harm which would be occasioned by any repetition of the applicant’s violent conduct. He was not obliged to attempt a more precise quantification of the risk: cf Coderre v Minister for Immigration and Border Protection [2014] FCA 769 at [36] (Besanko J).

85    It is ultimately not particularly useful or fruitful to compare and contrast the Minister’s reasons in this matter with the Minister’s reasons in both or either of Tanielu and Roesner. The Minister’s reasons in both those cases bear some similarities to the Minister’s reasoning in this case. There are, however, also some material differences. There are also other cases where reasoning similar to that adopted by the Minister in this case has been considered and ultimately upheld by single judges of this Court: see for example Coderre v Minister for Immigration and Border Protection (2014) 143 ALD 675; Gbojueh; MZAGK. Ultimately, the question whether the Minister gave proper or genuine consideration to the risk posed by Mr Te Puke if his visa was not cancelled is not properly answered by simply considering what other judges have said about similar reasoning in other cases.

86    For the reasons essentially already given, it is not open to conclude that the Minister failed to give proper or genuine consideration to the risk of harm. Whilst the Minister’s reasons are, to an extent, somewhat simplistic, they nonetheless address the fundamental issue. The Minister found that there was a risk that Mr Te Puke would re-offend. That finding was based (as in Roesner) on two matters; first, the fact that Mr Te Puke’s rehabilitation had only been tested for a short time; and second, the somewhat crude, but nonetheless not entirely illogical, finding that, given that Mr Te Puke had offended before, it could not be said that there was no risk of him re-offending. Whilst it may be correct that this finding was based on a generalisation not firmly rooted in Mr Te Puke’s particular circumstances, it does not follow that the Minister failed to give the issue proper and genuine consideration. To conclude otherwise would be to impermissibly intrude on the merits of the Minister’s decision.

87    The Minister also reasoned that, even though the risk of Mr Te Puke re-offending was low, the Australian community should not be required to tolerate that risk given that, should he re-offend, the harm that would be suffered would be great. Whilst again the reasoning is somewhat simplistic, and the language somewhat infelicitous, it cannot be said there was no assessment of the seriousness of any future harm. The finding about the seriousness of any future harm was based on the finding concerning the seriousness of the harm that Mr Te Puke had caused in the past.

88     As has already been said, in addressing a ground such as this, the Court is not to be concerned with looseness in language or unhappy phrasing in the Minister’s reasons: Pozzolanic; Wu Shan Liang. The Minister’s reasons must be considered as a whole and in “a practical and realistic manner”: Salahuddin v Minister for Immigration and Border Protection (2013) 140 ALD 1 at [22]. When read this way, it cannot be concluded that there was no assessment by the Minister of the risk of harm or the seriousness of the potential harm.

The same may be said for Minister Dutton’s decision in this case. The fact is that Mr Cotterill was found to have committed certain offences and it was not “entirely illogical” for the Minister to say that there was no risk of reoffending. The Minister’s conclusion was that the risk in this case, however low, was outweighed by the Minister’s countervailing considerations that Mr Cotterill represented an unacceptable risk to the Australian community. Minister Dutton was not bound to find that Mr Cotterill posed no risk of reoffending and, in that context, the finding that such risk as there was, was “low” was open to the Minister on the material before him: cf Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705, [64].

18    The second ground for Mr Cotterill’s application for judicial review was that Minister Dutton failed to give proper or genuine consideration to the risk of harm posed by Mr Cotterill’s continued presence in Australia or that the Minister had misunderstood the correct approach to the assessment of the risk of harm. The particulars to this ground relied in part upon those for ground 1 and, to that extent, need not be reconsidered. A second particular was also relied upon for the second ground of the application, namely, that there was “no genuine consideration on the merits of the likelihood of [Mr Cotterill] reoffending or the likelihood or risk of future harm”. In that regard it was contended for Mr Cotterill that it was not sufficient for the Minister simply to advert to the issue of the protection of the community without analysis and that the Minister’s reasons did not engage with the likelihood of further offending by Mr Cotterill on the material available to the Minister. In that regard it was submitted that the Minister had reached a conclusion of “unacceptable risk of harm” without engaging or assessing the overwhelming favourable factors in Mr Cotterill’s case in relation to the risk concerned.

19    In considering these matters it is useful to bear in mind the cautionary observation made by Basten JA in Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450, adopted by Perram J in Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [22], that formulations of what the test for judicial review requires “such as ‘proper, genuine and realistic’ or consideration ‘in a real or conscientious way’” may be apt to cause a slide into impermissible merits review.

20    The requirement that the Minister “consider”, “engage” or “assess” a matter he considered to be relevant required the Minister to take it into account and to give it weight. In Elias v Commissioner of Taxation (2002) 123 FCR 499 Hely J said at [62]:

If a consideration is relevant in a Peko-Wallsend sense, a decision-maker does not take it into account if he dismisses the consideration as irrelevant. It was, I think, in that sense that Wilcox J said in Nestle Australia at 184:

“To take a matter into account means to evaluate it and to give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant.”

In Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453 at 468, Lindgren J, under the heading “What it means to ‘take into account’ a relevant consideration”, said that the issue is whether the decision-maker “really”, “genuinely”, “properly” and “effectively” took into account the consideration in question, but recognising that the weight to be given to the consideration, either in an absolute or relative sense, is a matter for the decision-maker. In NIB Health Funds Ltd v Private Health Insurance Administration Council (2002) 115 FCR 561, Allsop J recognised at 598 [155] that a particular matter may be identifiable as having been touched upon by a decision-maker, but that does not necessarily mean that it has been taken into account in the sense referred to in the authorities.

In NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 Allsop CJ and Katzmann J said at [26]:

If the particular circumstances of the applicant were correctly to be seen as mandatory in the present case, not only did the Minister fail to consider the legal consequence of refusal (indefinite detention) but he also failed to give proper consideration (Khan and SZJSS at [26]) to the merits of the case before him. To do so, on this hypothesis, he would be required to genuinely consider whether he should refuse a protection visa to a person who feared for his life, and whether that person should be detained indefinitely, because he had committed the offence for which he was convicted, in the circumstances in which he did.

The weight to be given to a matter to be taken into account is something which the Minister was to decide. In Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883, Tracey J said at [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.

The consideration which the Minister gave to the risk of harm posed by Mr Cotterill’s continuing presence in Australia may be described in various ways but not (without impermissibly engaging in merits review) as a failure to give “proper or genuine consideration” or as misunderstanding “the correct approach to the assessment of the risk of harm”. Whether the consideration was “proper or genuine” or whether the Minister “misunderstood the correct approach to the assessment” of a relevant factor does not depend upon whether the court has a different view of the merits. The Minister’s view, as expressed in his reasons, was that the Australian community expects that persons who are not citizens will obey Australian laws whilst in Australia and that Mr Cotterill had breached this trust and had been convicted of five counts of sexually based offences involving a child in Australia that were viewed very seriously. The Minister at [37] stated that in making his decision he had been mindful of the view that the Australian community would expect that persons who commit serious crimes in Australia can and should have their visa cancelled. The Minister was not obliged to evaluate the likelihood of future harm to the Australian community by Mr Cotterill’s continued presence: Moana v Minister for Immigration and Border Protection [2015] FCAFC 54, [70]-[78]. It was, however, the Minister’s view that the risk posed by Mr Cotterill (albeit it low) was outweighed by the Minister’s evaluation of what he considered to be an unacceptable risk to the Australian community of a person who was not a citizen if he reoffended.

21    Accordingly the application for review will be dismissed.

Associate:

Dated:    7 August 2015