FEDERAL COURT OF AUSTRALIA

CFT15 v Minister for Immigration and Border Protection [2016] FCA 283

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the costs of the Respondent, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

1    The Applicant has applied for an extension of time in which to make an application for review of a decision of the Respondent (“the Minister”) made on 22 October 2014 pursuant to s 501(2) of the Migration Act 1958 (Cth) (“the Act”) to cancel the Applicant’s Class XB Refugee and Humanitarian Subclass 200 Refugee Visa (“the visa”). An extension of time is required because the proposed application is some 11 months out of time.

background

2    The Applicant is a citizen of Liberia and was granted the visa on 29 August 2002. He arrived in Australia on 30 January 2003 together with his wife and children.

3    In September 2006, the Applicant was convicted in the District Court of New South Wales on four counts of sexual intercourse without consent and one count of indecent assault. The offences were committed a year after the Applicant’s arrival, on 31 January 2004. He was sentenced to 11 years’ imprisonment with a non-parole period of eight years. On 2 September 2008, the Applicant’s appeal to the Court of Criminal Appeal for New South Wales against the convictions was dismissed.

4    On 6 September 2013, the Minister’s Department sent the Applicant a Notice of Intention to Consider Cancellation of the visa pursuant to s 501(2) of the Act together with a copy of Ministerial Direction 55. The Applicant was invited to comment on information that the Minister proposed to rely on and to provide any further information that may be taken into account in making the decision and he responded to those invitations to comment.

5    On 22 October 2014, the then Minister made a decision under s 501(2) to cancel the Applicant’s visa. The Minister had before him a Departmental Submission to which was attached an Issues Paper together with attachments and a draft Statement of Reasons. The Minister found that the Applicant had a “substantial criminal record” within the meaning of s 501(7) of the Act and that he did not pass the character test by virtue of s 501(6)(a) of the Act. The Minister then considered whether to exercise his discretion to cancel the visa and decided to exercise his discretion to cancel the Applicant’s visa. The Minister provided a Statement of Reasons in respect of his decision.

the legislative framework

6    Section 501 of the Act relevantly provides:

501 Refusal or cancellation of visa on character grounds

Decision of Minister or delegate – natural justice applies

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note: Character test is defined by subsection (6).

(2)    The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.

Decision of Minister – natural justice does not apply

(3)    The Minister may:

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

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

if:

(c)    the Minister reasonably suspects that the person does not pass the character test; and

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

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

(5)    …

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

(aa)…

Substantial criminal record

(7)    For the purposes of the character test, a person has a substantial criminal record if:

(a)    …

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)    …

7    It was not disputed that the Applicant has a substantial criminal record and did not pass the character test in s 501(6). In issue is whether the Minister fell into legal error in the exercise of his discretion under s 501(2).

minister’s decision

8    Having found that the Applicant did not pass the character test, the Minister considered whether to exercise his discretion to cancel the Applicant’s visa. The consideration included an assessment of the criminal conduct of which the Applicant was convicted, which the Minister stated “to be very serious violent sexual offences that are repugnant to the Australian community and contrary to community values”. The consideration also included the Applicant’s risk of reoffending. Amongst other matters, the Minister took into account that the Applicant had completed the SOP PREP (PREP) Pre-treatment Program which aims to increase offenders’ motivation and willingness to participate in a sex offender treatment program, though the Minister observed that such a treatment program has not been available to the Applicant in prison. The Minister also took into account that the Applicant, in December 2013, was assessed as a low risk of reoffending. The Minister, nonetheless, considered that even a low risk that the Applicant would commit further violent sexual offences was unacceptable. The Minister noted at [17] of his Reasons for Decision that in 2007, 2013 and 2014 the Applicant repeatedly denied his offending, made claims of innocence and stated that he had been set up, whereas:

In contrast, a Pre-release report dated 10 July 2014 revealed that he made admissions of guilt during an assessment with a Forensic Psychologist. According to authoritative opinions, [the Applicant] has not gained insight into his offending or the impact of his offending on the victim.

The Minister stated that the Applicant’s “repeated stance of denial and lack of insight into his offending” concerned him in terms of his risk of reoffending. After noting other matters, including the support and commitment of the Applicant’s family and friends to assist the Applicant to reintegrate into the community following his release from custody and the Applicant’s resolve to be a law abiding citizen in the future, the Minister concluded at [24]:

[The Applicant’s] offending is very serious, violent sexual offending and I consider that the extent of his rehabilitation has not yet been tested in the community, particularly since he has not participated in offence targeted programs. [The Applicant] has been independently assessed as a low risk of sexual reoffending. However, I find that if he was to reoffend in a similar manner the risk of harm to victims would be significant, with the possibility of ongoing psychological and physical injury. I therefore find that even a low risk that [the Applicant] would commit further violent sexual offences is unacceptable as his offending would result in great harm.

9    Other matters considered by the Minister in the exercise of his discretion included Australia’s non-refoulement obligations to the Applicant. The Minister noted that an International Treaty Obligations Assessment conducted by Onshore Protection Victoria on 27 November 2013 in relation to the Applicant (“the Assessment”) made the finding that a cancellation of the Applicant’s visa would not result in a breach of Australia’s international treaty obligations. Based on that Assessment the Minister therefore concluded that Australia did not have any non-refoulement obligations to the Applicant.

10    The Minister also had regard to the fact that the Applicant was 47 years of age and taking medication for depression. The Minister took into consideration that the Assessment stated that there is a lack of social support and medical treatment in Liberia, and noted the Applicant would not have medication available to him in Liberia if his visa was cancelled.

11    Paragraphs 54 to 58 set out the Minister’s conclusions as follows:

54.    I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act 1958, and (2) all other evidence available to me, including evidence provided by, or on behalf of [the Applicant].

55.    I have considered the principle that a non-citizen who commits a serious crime should forfeit the privilege of staying in Australia, and I find that this principle applies in this case. [The Applicant] committed a heinous offence of a sexual nature.

56.    I concluded that [the Applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the strong countervailing considerations. Those strong countervailing considerations consist of his familial ties in Australia, inclusive of his spouse, two adult children, Cassimo and Tejan and his sister. In addition, the best interests of his three minor children, 17 year old Weah, 15 year old Hawa, ten year old Fred and grand-daughter Lucia. I accept [the Applicant’s] plans to reunite his family and consider that if his visa is cancelled this will not eventuate.

57.    I considered the nature and gravity of [the Applicant’s] offending and find that in some circumstances the offending is so serious that even strong countervailing considerations are insufficient to justify not cancelling a visa. I find this is the case here and make particular note of the difficulties he will face upon returning to Liberia, inclusive of his health.

58.    Having given full consideration to all of these matters, I decided to exercise my discretion to cancel [the Applicant’s] Class XB Refugee and Humanitarian Subclass 200 Refugee visa under s501(2).

The proposed grounds of review

12    The proposed grounds of review are as follows:

(i)    The Respondent erred in law by failing to exercise his discretion in accordance with Ministerial Direction 21: "Visa Refusal and Cancellation Under Section 501", made pursuant to Section 499 of the Act; or alternatively the Respondent's decision was unreasonable; or irrational, illogical and/ or not based on findings and inferences of fact supported by logical grounds

PARTICULARS

(a)    At paragraph 24 of his reasons for cancellation the Respondent acknowledged that the Applicant had been independently assessed as a low risk of sexual reoffending, but proceeded to cancel the Applicant's visa based on speculative finding that if the Applicant was to re-offend in a similar manner the risk of harm to victims would be significant, with the possibility of ongoing psychological and physical injury.

(b)    By relying on policy and speculations rather on facts and prevailing circumstances of the Applicant, the Respondent's decision was infected with jurisdictional error

(c)    In relation to the Applicant's ties to Australia, the Respondent concluded that Australia community would have a low tolerance for criminal conduct committed by a person who has been participating in and contributing to the Australian community for a short period of time, as is the Applicant's case. Such speculative reasoning [is] unreasonable because it failed to take into consideration whether the Australian community would take into consideration the Applicant's troubled childhood and the fact that does not have any other criminal record, or any records of being disrespectful to Australian which in jailed.

(ii)    The Respondent erred in law and failed to accord the Applicant natural justice in taking into account irrelevant matters and failing to take into account relevant matters in making his decision.

PARTICULARS

(a)    At paragraph 17 of his reasons for cancellation, the Respondent concluded that the Applicant's repeated stance of denial and lack of insight into his offending concerns him in terms of the Applicant's risk of re-offending. This reasoning is unreasonable.

(b)    Further, the Respondent failed to take into consideration the fact that the Applicant has no other history of offending, and the fact that although the victim alleged that the Applicant had kissed and raped her several times, the Applicant's DNA was not found on the victim. The Respondent further failed to take into consideration the fact that the Applicant's conviction was purely based on circumstantial evidence; and the matter was dismissed at the local court for want of evidence.

(c)    The Respondent further failed to take into consideration the fact that the Applicant's conviction was purely based on circumstantial evidence and the fact that the matter was dismissed at the local court for want of evidence

(d)    At paragraph 17 of his reasons for cancellation, the Respondent took into consideration an inconclusive and misguided statement by Forensic Psychologist in his Pre-release report dated 10 July 2014, and concluded that the Applicant had made admissions of guilt during an assessment with a Forensic Psychologist. However, the same report concluded that the Applicant did maintain his innocence during the said interview.

(e)    The findings and/or conclusions outlined in the Respondent's reasons for cancellation with respect to the Applicant's risk of re-offending are infected with jurisdictional error in that the Respondent relied on matters for which there was no evidence and/or for which the evidence relied upon were either misguided or based on unchallenged personal opinion.

(iii)    The Respondent erred in law in cancelling the Applicant's visa without giving adequate independent consideration to the current circumstances by virtue of which the Applicant, a refugee in Australia, faces a well-founded fear of persecution if returned to his country or origin in breach of Australia's obligations under the Refugee Convention.

(iv)    In the alternative, the Respondent’s decision was infected with jurisdictional error, in that the decision involved inflexible application of policy.

explanation for the delay

13    The Applicant swore an affidavit in support of his application for an extension of time in which to bring his application for review. He explained in his affidavit that whilst in prison he received a Notice of Intention to Consider Cancellation of his visa under s 501(2) in September 2013. He was given 28 days in which to respond to the Notice. At the time he could not read and comprehend English enough to understand what to do with the documents and gave the documents to an inmate who, after reading them, advised him that all he had to do was complete the personal details form and return it to the Department of Immigration. He duly completed that form in October 2013 with the help of the inmate and sent it back to the Department of Immigration. In his response, he claimed that he would be persecuted if he was forced to return to Liberia and gave his reasons for his claim. By a decision dated 27 November 2013, a delegate of the Minister concluded that Australia did not have non-refoulement obligations in respect of the Applicant. The Applicant complained that he was not put on notice that the information he had provided in the personal details form was not adequate for the purposes of considering whether to cancel his visa under s 501(2) of the Act. He also complained that he did not receive any further communication from the Minister in respect of the Notice of Intention to Consider Cancellation of his visa until October 2014 when he received a Notice from a delegate advising that his visa had been cancelled personally by the Minister. He deposed that he was misled by the content of that Notice in that he was made to believe that there was no avenue to challenge the Minister’s decision. He referred to the statement in the Notice that:

While the Administrative Appeals Tribunal (AAT) has the power to review decisions to cancel or refuse the grant of a visa under s 501 made by delegates of the Minister, it cannot review decisions made by the Minister personally…

14    He then deposed that whilst in gaol, he was told by delegates of the Minister who visited the gaol on a regular basis that his only option was to appeal to the Minister to allow him to remain in Australia under s 417 of the Act and that had he known that this Court has jurisdiction to review the Minister’s decision, he would have sought review within the time allowed under the Act.

consideration

15    The Minister did not challenge the explanation given by the Applicant for failing to file his application within time. However it was submitted that it is not in the interests of justice to grant an extension of time to bring the application because the delay is very substantial and the Applicant’s grounds lack sufficient prospects to warrant an extension.

16    The delay is extensive but it appears from the Applicant’s affidavit that the delay was occasioned by his lack of knowledge of his legal right to challenge the Minister’s decision in judicial review proceedings. I am prepared to accept the Applicant’s explanation for the delay in making his application for judicial review but, for the reasons that follow, I do not consider that an extension of time should be granted for the reason that the Applicant’s proposed grounds lack sufficient prospects of success to warrant an extension of time in the interests of the administration of justice.

Grounds 1 and 2

17    Grounds one and two of the proposed Application for Judicial Review essentially raise the same review ground and can be dealt with together.

18    It was submitted for the Applicant that the Minister’s decision was unreasonable in the legal sense because of alleged deficiencies in the reasoning. It was submitted that as the consequence of the deficiencies in reasoning, the Minister’s decision was not based on the Applicant’s actual circumstances but on “speculative reasoning” with respect to the Applicant’s risk of reoffending, despite the recognition at [24] of the Minister’s decision that the Applicant had been independently assessed as a low risk of sexual reoffending. It was submitted that the decision accordingly lacked a proper logical chain of reasoning.

19    As Allsop CJ recently cautioned in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [8], [12], the concept of legal unreasonableness does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness. Rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The determination as to whether a decision is unreasonable in the legal sense does not involve the Court substituting its view as to how the discretion should be exercised for that of a decision maker and the fact that a Court exercising judicial review may disagree with a primary decision maker’s evaluation of the relevant facts and considerations and the exercise of a statutory discretionary power is insufficient of itself to justify judicial intervention: Stretton at [74]–[75].

20    In the present case, the Minister’s conclusion that even a low risk that the Applicant would reoffend was “unacceptable” had a logical and rational foundation and was not unreasonable in the legal sense. The Applicant’s conviction was the foundation for the exercise of power under s 501 and, in the face of that conviction, the Minister was not obliged in the exercise of his discretion to go behind the conviction either to take into consideration, or give weight to, the Applicant’s claim of innocence and the nature of the evidence upon which the Applicant was convicted: Bridges v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 456; [2001] FCA 1647, [43]–[45]; Evans v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 180 at [9]. To the contrary the Minister was entitled to act upon the conviction which was upheld by the Court of Appeal and take into account at [17] as a matter bearing upon his exercise of discretion that according to authoritative opinions the Applicant has not gained insight into his offending or the impact of his offending on the victim.

21    I also do not accept the submission that the matters related to the Applicant’s lack of insight and likelihood of reoffending that were taken into account by the Minster were irrelevant and improperly considered. Given that one aspect of the scope and purpose of s 501 is the protection of the Australian community (Stretton at [15]), a primary consideration for the Minister in the exercise of his discretion was the risk of the Applicant reoffending. Whether the Applicant lacks insight into his offending is a matter that has a logical connection with a consideration as to the risk of the Applicant reoffending and it was open to the Minister to have regard to, and give weight to, the “authoritative opinions” that the Applicant lacks insight into his offending.

22    Nor is there any substance in the submission that the Minister’s reasoning at [17] was illogical because the Minister had relied on “an inconclusive and misguided statement” by a forensic psychologist recounted in a pre-release report that the Applicant “both admitted his guilt and maintained his innocence”. Apart from being no more than mere assertion, that submission simply invites impermissible merits review by challenging the factual basis upon which the Minister formed his view and does not identify jurisdictional error.

23    Nor can it be said that there was legal error in the Minister’s decision because, as submitted, the Minister, in reaching his conclusion, failed to give due weight, amongst other things, to the Applicant’s lack of previous criminal history and his prospects for rehabilitation and his good behavioural record in jail. The Minister took those matters into account in reaching his decision and it was a matter of evaluative judgment for the Minister as to the weight to be afforded to those factors. It is not the task of this Court on review of the decision to evaluate for itself whether greater weight should have been afforded to those factors where the decision was open on the material before the Minister: Stretton at [11]–[12], [17], [75], [101].

24    The decision did not lack an evident and intelligible justification or involve “speculative reasoning” that was not supported by logical grounds, as submitted for the Applicant. There was nothing irrational or illogical in concluding that even a low risk of reoffending was unacceptable, given the serious nature of the crimes of which the Applicant was convicted, as the Minister reasoned at [24]: Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513; [2015] FCAFC 83 at [44]–[48], [52]–[53].

Ground 3

25    It was submitted that the Minister’s consideration of Australia’s obligations to the Applicant under international treaties was affected by legal error because the Minister relied upon the Assessment completed in November 2013 to conclude that Australia did not have non-refoulement obligations to the Applicant and did not apply his own mind to that question or give it genuine consideration. It was also submitted that the Minister failed to consider the relevant circumstances based on consideration of a contemporary enough assessment and, in particular, failed to consider Australia’s non-refoulement obligations to the Applicant having regard to the Applicant’s current mental health. I am not persuaded that that there is any vitiating error in the Minister relying on the conclusion reached in that Assessment that cancellation of the visa would not result in the breach of Australia’s international treaty obligations. It was not shown that the Assessment was inadequate in any material respect and the Applicant did not identify or advance any material to suggest that there had been any material changes to the situation in Liberia or in relation to the Applicant’s mental health which would show that the Assessment was not a “contemporary enough assessment”. Specifically, the Assessment had dealt with whether Australia had non-refoulement obligations to the Applicant having regard to his mental state. It was noted that country information indicated that the treatment for mental health problems is virtually non-existent in Liberia and it is therefore likely that the Applicant will not have access to medications for his severe depression and anxiety. However, the conclusion reached was that in light of the international jurisprudence, the Applicant’s poor mental health and lack of medical treatment options in Liberia does not involve significant harm to trigger non-refoulement obligations under relevant international treaties. The Minister made his decision in the knowledge of the Applicant’s mental health issues at the time of the Assessment which have not been shown to be any different at the time the actual decision was made.

Ground 4

26    Finally it was submitted for the Applicant that the Minister’s reasons for cancelling the Applicant’s visa at [55] and [57] disclose an invalidating inflexible application of a policy in so far as they state that :

55.    I have considered the principle that a non-citizen who commits a serious crime should forfeit the privilege of staying in Australia and I find that this principle applies in this case. [The Applicant] committed a heinous offence of a sexual nature.

…

57.    I considered the nature and gravity of [the Applicant’s] offending and find that in some circumstances the offending is so serious that even strong countervailing considerations are insufficient to justify not cancelling a visa.

It was submitted that these considerations “became inflexibly determinative in the context of the illogically prejudgmental line of reasoning” and the Minister failed to take into account all relevant matters in exercising his discretion.

27    The reasons for decision do not support a conclusion that the Minister inflexibly applied a policy. The visa was not cancelled solely on the basis that the Applicant had been convicted of a serious crime. As the reasons of the Minister disclose, the Minister gave consideration to the evidence placed before him and gave consideration to a number of factors, including mitigating factors that were personal to the Applicant. The Minister considered the Applicant’s familial ties to Australia, the best interests of his three children under the age of 18 years, his mental health issues, his absence from Liberia for more than two decades and his lack of familial and social networks in Liberia. These matters were not considered to be sufficiently countervailing to justify not cancelling the visa. In Stretton at [23] Allsop CJ stated that the decision under s 501 necessarily involves the application of some policy to the circumstances of a particular case in which the primary consideration for the Minister is the question of harm to the Australian community. Given the nature and gravity of the Applicant’s offending, the conclusion of the Minister, that even a low risk that the Applicant would commit further offences of the kind of which he was convicted was unacceptable as his offending would result in great harm, was open to be reached in the exercise of the Minister’s discretion.

conclusion

28    Accordingly the application should be dismissed.

Associate:

Dated:    23 March 2016