FEDERAL COURT OF AUSTRALIA

Hooton v Minister for Immigration and Border Protection [2017] FCA 586

ORDERS

THE COURT ORDERS THAT:

1.    Subject to the following orders, the application be dismissed.

2.    The application be stood over until two weeks after the determination of Falzon v Minister for Immigration and Border Protection [2017] HCA Trans 84 (11 April 2017), No S31 of 2017, by the High Court of Australia.

3.    The applicant pay the respondent's costs, as agreed or assessed, of the application so far as it concerns the non-constitutional grounds considered in this judgment.

4.    Liberty to apply on 24 hours' notice.

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

REASONS FOR JUDGMENT

BARKER J:

1    Before the Court is an amended application for judicial review of a decision of the Minister for Immigration and Border Protection not to exercise discretion to revoke a decision made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant's visa.

VISA STATUS

2    The applicant is a male citizen of New Zealand who was born on 12 June 1980. He first arrived in Australia on 18 August 1995, as a 15 year old, although he left Australia briefly for approximately 11 months during 1996-1997. The applicant last arrived in Australia on 10 December 1997 on a Class TY Subclass 444 Special Category (Temporary) visa.

3    On 3 June 2014, just short of his 34th birthday, the applicant was convicted in the District Court of Western Australia of the offences of "Uses a Carriage Service to Access Pornography Material" and "Possessing Child Exploitation Material", and was sentenced to a concurrent term of 20 months imprisonment.

4    On 27 January 2015 a delegate of the Minister made the decision to mandatorily cancel the applicant's visa under s 501(3A) of the Migration Act 1958 (Cth) (the visa cancellation decision).

5    On 23 February 2015 the Department of Immigration and Border Protection received the applicant's request for a revocation of the visa cancellation decision under s 501CA(4) of the Act.

6    The applicant was released from criminal custody and detained in immigration detention on 4 June 2015.

7    On 22 July 2016 the Minister made a decision not to revoke the visa cancellation decision and signed a statement of reasons for his decision.

8    The applicant filed an application for review of the Minister's decision not to revoke the visa cancellation decision in the Federal Circuit Court on 26 August 2016. On 4 November 2016, a judge of that court ordered the proceeding be transferred to this Court pursuant to s 39(1) of the Federal Circuit Court of Australia Act 1999 (Cth).

9    Following a first case management hearing on 24 November 2016, the applicant was referred for pro bono legal assistance, which he later received.

10    The applicant filed an amended application on 14 February 2017 and was subsequently represented at the hearing of his judicial review application of the Minister's decision.

DELEGATE'S DECISION

11    On 27 January 2015 the applicant was notified of the delegate's decision to cancel his Class TY Subclass 444 Special Category (Temporary) visa.

12    The delegate noted in the notice of visa cancellation that s 501(3A) of the Act is a mandatory cancellation power, which provides that the Minister or a delegate of the Minister must cancel the applicant's visa if satisfied that the applicant does not pass the character test because he has a substantial criminal record on the basis of s 501(7)(a), (b), or (c) of the Act; and the applicant is serving a full-time sentence of imprisonment in a custodial institution because he has committed an offence.

13    The delegate was satisfied that the applicant did not pass the character test on the ground that he had a "substantial criminal record" as defined by s 501(7)(c), which provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

14    Accordingly, the applicant's visa was cancelled.

MINISTER'S DECISION

15    The applicant made a request for revocation of the visa cancellation decision on 31 January 2015 and provided supporting documents. In his request form, the applicant stated the following reasons for revocation (as written):

1)    Doing programs to address offending behaviour

2)    My behaviour in prison have been very good

3)    In my Sentence Report in the Pycologish Report it says I'm very likely not Reoffend or progress to offences against children.

4)    I have most of my family here

5)    I have no family and nothing to return to if sent back to New Zealand

6)    My mother has been diagnosed with Parkinsons and will need all her family here and a lot of care later on.

16    In his statement of reasons dated 22 July 2016, the Minister noted that, under s 501CA(4) of the Act, the Minister may revoke a cancellation decision made under s 501(3A) if: (a) the applicant makes representations in accordance with the invitation given under s 501CA(3)(b); and (b) the Minister is satisfied that the person passes the character test (as defined in s 501), or there is another reason why the original decision should be revoked.

17    The Minister accepted that the applicant made representations on 23 February 2015 in accordance with the invitation, as required under s 501CA(4)(a) of the Act.

18    The Minister noted that the applicant was convicted of the offences of Uses a Carriage Service to Access Child Pornography Material and Possessing Child Exploitation Material, and was sentenced to 20 months imprisonment. The Minister further noted that the applicant did not dispute this information in his representations and supporting documents. Consequently, the Minister was not satisfied that the applicant passed the character test under s 501CA(4)(b)(i).

19    The Minister then considered whether he was satisfied there was another reason why the visa cancellation decision should be revoked, in light of the applicant's representations and supporting documents. In this regard, the Minister considered the best interests of minor children; the strength, nature and duration of the applicant's ties to Australia; the extent of impediments that the applicant would face if removed to New Zealand; and the protection of the Australian community.

20    In relation to the consideration of the best interests of any affected minor children, the Minister found that revocation of the visa cancellation decision would be in the best interest of the applicant's niece, who lives in Australia. However, the Minister noted that the applicant was not responsible for the daily care and control of his niece.

21    The Minister also had regard to the strength, nature and duration of the applicant's ties to Australia. The Minister noted that the applicant has resided in Australia for more than 18 years, having first arrived in Australia when he was 15 years old and remaining in Australia from the age of 17 years. The Minister was of the view that the Australian community may afford a higher tolerance of criminal conduct, given that the applicant has spent over half of his life in Australia. The Minister gave more weight to this consideration on the basis that the applicant contributed positively to the community through his employment and his familial and social relationships.

22    The Minister said the applicant had migrated to Australia with his mother, sister and step-father, and shared a close relationship with his mother, who was diagnosed with Parkinson's disease and suffers from depression. The Minister took into account a doctor's statement that the applicant's mother would benefit from the applicant's continued residence in Australia, and accepted that non-revocation would result in practical and significant emotional hardship to the applicant's mother, which may potentially exacerbate her depression.

23    The Minister also considered the effect of non-revocation on the applicant's sister, extended family and friends in Australia, and accepted that these people may experience sadness, disappointment and emotional hardship if he were removed from Australia.

24    The Minister had regard also to the impediments the applicant would face in establishing himself and maintaining basic living standards if he were removed to New Zealand. The Minister found, however, that the applicant would not experience any substantial cultural or language barriers in New Zealand, as the applicant had lived in New Zealand until he was 15 years old, and the applicant's work experience in Australia was transferable to New Zealand.

25    The Minister did note though that the applicant had been absent from New Zealand for all his adult life and had not maintained relationships with his relatives in New Zealand. The Minister had regard to a psychologist's report, which stated that the applicant had difficulty sustaining supportive and functional relationships, which may make him vulnerable to stress. The Minister found that the applicant was likely to experience some practical and financial hardship re-establishing himself in New Zealand, and accepted that the psychological circumstances of his case would impede his reintegration and cause additional difficulties.

26    The Minister then turned to the consideration of the protection of the Australian community and noted that "remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are law abiding".

27    In considering the nature and seriousness of the applicant's criminal offending, the Minister noted that sexually based offences involving children are very serious. The Minister had regard to the sentencing remarks in the District Court that the offending material which the applicant was convicted of accessing and possessing was "abhorrent, much of it being towards the highest level of seriousness", and that the applicant acknowledged that he was convicted of a serious offence. The Minister was of the view that the applicant's criminal offending was very serious.

28    In assessing the risk the applicant posed to the Australian community, the Minister took into account that the applicant pleaded guilty to his offending at an early stage, cooperated with law enforcement authorities, expressed regret and remorse over his conduct and took full responsibility for his behaviour. The Minister also considered that the applicant's completion of a cognitive skills program for sex offenders reduced his likelihood of re-offending. However, the Minister said that there was no evidence that the applicant completed a rehabilitation program for sex offenders, which the applicant was recommended to undertake but was not available to him.

29    The Minister acknowledged the applicant's positive conduct in prison, and that the applicant had the support of his family and friends in the community, which was likely to be a protective factor.

30    However, the Minister stated, the applicant's rehabilitation remained untested in the community, where he would not be under the supervision of the parole service. The Minister could not discount entirely the prospect of further offending by the applicant. The Minister reiterated the serious nature of the sex based offences the applicant committed against children, noting that he was "mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia". The Minister concluded that the applicant represented an unacceptable risk of harm to the Australian community, which outweighed the other considerations he had described.

31    Consequently, the Minister said he was not satisfied that there was another reason why the visa cancellation decision should be revoked under s 501CA(4)(b)(ii) and the applicant's visa remained cancelled.

JUDICIAL REVIEW IN THIS COURT

32    The applicant filed an amended application on 14 February 2017, which contains the following ground of review:

The Respondent Minister fell into jurisdictional error by failing to have regard to a relevant consideration when, in assessing the Risk to the Australian Community, and finding that in the community the Applicant would not be subject to the supervision of the parole service, he failed also to take into account that:

1.    It was inevitable that, under the provisions of the Community Protection (Offender Reporting) Act 2004 (W.A.) ['the Act'], the Applicant's name would be placed on a Child Sex Offender Register, as occurred on before 15 June 2015, and that as a consequence that:

1.1.    His name would remain on the Register for 15 years from 15 June 2015.

1.2.    He would be subject to the reporting provisions of the Act for 15 years.

1.3.    Any further offence would be readily detected.

1.4.    His internet use would be readily monitored over that period, as he would be required to provide police with:

1.4.1.    details of any Internet service providers he used; and

1.4.2.    his usernames; and

1.4.3.    his passwords other than for bank accounts;

1.5.    His movements, within Australia, and overseas, would be controlled by police for 15 years;

1.6.    Breaches of the Act could attract severe penalties including imprisonment for up to five years;

1.7.    Access to all such prohibited material may be readily prevented by authorities in the foreseeable near future.

33    In his written submissions filed on 13 March 2017, the applicant identified the following issues:

•    Was the application of the Community Protection Act to Mr Hooton, as reportable offender under that Act, relevant to the Minister's consideration of his application under section 501CA(4) of the Migration Act for revocation of the cancellation of his visa?

•    If so, did the failure of the Minister to take this factor into account, in the exercise of his discretion in considering revocation of the visa cancellation, cause him to fall into jurisdictional error?

•    If so, should the failure of Mr Hooton to draw this factor to the Minister's attention disentitle him to relief by way of the quashing of the Minister's decision?

34    At the hearing, the applicant, by counsel, expressly advised the Court that he did not raise as an issue or ground of appeal the Minister's statement, set out above at [26], to the effect that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are law-abiding.

35    The Minister contends that the Community Protection (Offender Reporting) Act 2004 (WA) (State Act) and its consequences for the applicant were not relevant considerations that the Minister was bound, as a matter of law, to take into account.

36    Thus, the Minister denies the proposition that he fell into jurisdiction error when deciding not to revoke the delegate's decision and finding that, in the community, the applicant would not be subject to the supervision of the parole service, as he did at [46] of his reasons.

37    The Minister submits that to the extent that there was a consideration which the Minister was required to consider, it was the risk of harm to the Australian community if the applicant remained in Australia, as stated in Buchwald v Minister for Immigration and Border Protection (2016) 242 FCR 65 at [70]-[71]; [2016] FCA 101; which matter the Minister considered.

38    As to the provision by the applicant, at the hearing, of a "Notice of Reporting Obligations" (notice), issued under s 28 of the State Act, which states that the applicant must continue to comply with the reporting obligations imposed under that Act for 15 years, the Minister says the notice was not provided to the Department and was not put before the Minister in considering whether to revoke the decision of the delegate. Accordingly, there can be no jurisdictional error by reason of the Minister's failure to take into account that notice or the provisions of the State Act in that regard.

39    In any event, the Minister submits that his statement in his reasons at [46] that the applicant's rehabilitation was untested in the community where he would not be subject to the supervision of the parole service, was not inaccurate, notwithstanding the notice and the provisions of the State Act. The Minister says the applicant's rehabilitation was untested in the community, and although he may have reporting obligations, he will not be subject to the supervision of the parole service. The Minister could not rule out the possibility of further offending, as he said in his reasons.

40    In response to these submissions, the applicant says the Minister conflates two issues: the application of the State Act, and the giving of the notification.

41    As to the application of the State Act, the applicant notes that upon conviction on 2 June 2014, Mr Hooton became a reportable offender under s 6, having been convicted of a reportable offence under s 9. He was convicted of "Using a Carriage Service to Access Child Pornographic Material", and "Possession of Child Exploitation Material". The latter is a Class 2 reportable offence, being contrary to s 220 of the Criminal Code Act Compilation Act 1913 (WA), s 9 and Sch 2. He was required to report his personal details to the Commissioner of Police within seven days of ceasing to be in government custody. The Minister relied on these convictions when his delegate cancelled Mr Hooton's visa on 27 January 2015. The applicant contends the Minister had constructive notice of the engagement of the reporting provisions of the State Act in respect of Mr Hooton from that date.

42    The applicant notes the long title of the State Act, which describes it as:

An Act to require certain offenders who commit sexual or certain other serious offences to keep police informed of their whereabouts and other personal details for a period of time to reduce the likelihood that they will reoffend and to facilitate the investigation of any future offences that they may commit, to enable information to be published about certain offenders, to enable courts to make orders prohibiting certain offenders from engaging in specified conduct, and for related purposes.

43    He also notes the data that a reportable offender must provide at the police station, which is set out under the heading "Important Information for Reportable Offender" on the second page of the notice.

44    The applicant observes that in his reasons, at [46], the Minister considered supervision of Mr Hooton, after his release, to be a relevant consideration in making a risk assessment of his potential to reoffend: "Mr Hooton's rehabilitation is untested in the community, where he will not be subject to the supervision of the parole service". The applicant says that supervision under the State Act goes well beyond anything that might be required by a parole service.

45    As to the notice of reporting obligations, the applicant says that, as the Minister and his Department had constructive notice of the State Act, and the reporting requirements imposed on reportable offenders, it is not to the point that the Department had not been provided with the notice served on Mr Hooton.

46    He says the Minister's submissions draw no attention to the date and content of the notice, which was served on the applicant on 2 June 2015, two days before he was to be released from the Karnet Prison Farm on 4 June 2015. Under the terms of the notice, he was required to report to police before 11 June 2015. His address and telephone number are given as: "Dept of Immigration & Border Protection, Yongah Hill Immigration Detention Centre, Mitchell Ave, Northam, Ph. 9261 2000".

47    The applicant submits that, as his custodian at the time, the Minister would have had constructive, if not actual knowledge that the applicant was to be subject to the reporting conditions of the State Act.

48    As to whether the application and operation of the State Act is a relevant consideration, the applicant denies the Minister's submission that the State Act and its consequences for the applicant were not relevant considerations.

49    He submits Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, upon which the Minister relies, is distinguishable from the present case in at least two significant respects:

(1)    in Peko-Wallsend, relevant considerations, as matters to be taken into account by the Minister in deciding whether he should be satisfied that land should be granted, were prescribed by s 50(3) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), whereas no considerations are prescribed by s 501CA of the Act; and

(2)    the alleged error of the Minister in Peko-Wallsend lay in his failure to take into consideration facts within the knowledge of his Department, rather than the applicable statutory law, as is claimed by the applicant in this case.

50    The applicant notes that the factors a decision-maker is bound to consider in making the decision is determined by the structure of the statute conferring the discretion. Where the relevant factors are not expressly stated, as is the case with s 501CA of the Act, they may be determined by implication from the subject matter, scope and purpose of the Act: Mason J in Peko-Wallsend at [15(b)].

51    By reference to the Minister's reasons for decision, the applicant contends that, under the heading "Protection of the Australian Community", the Minister's reasons fall into two parts, headed "Criminal Conduct" and "Risk to the Australian Community", in that order.

52    He notes that the Minister "formed the view the view that Mr Hooton's criminal offending is very serious". So much may be accepted, the applicant says, and adds: but to approach the issue in this way is "to put the cart before the horse". A rational approach requires, first, an assessment of the risk, and then, having regard to the potential harm to the community, a decision whether the risk is within acceptable levels having regard to the seriousness of the potential future harm. The State Act was an element key to the risk assessment in the circumstances of the application before the Minister.

53    The applicant says the Minister, quite properly, regarded protection of the community as a primary consideration. In assessing the future risk to the community from the applicant, however, at least three factors were relevant:

(1)    the applicant's inclination to reoffend;

(2)    his ability to reoffend; and

(3)    the likelihood that he would be detected and punished if he did reoffend.

54    In this context, the applicant contends the reporting requirements of the State Act were relevant to all three factors; and the applicant has demonstrated that he is very conscious of them.

55    It follows, the applicant submits, that the provisions of the State Act were an "ancillary relevant consideration" in ensuring the protection of the Australian community, a consideration that the Minister properly viewed as a primary consideration in the exercise of the discretion conferred upon him to consider whether there was a reason, other than the failure to pass the character test, why the cancellation of the applicant's visa should be revoked.

56    By reference to Buchwald, counsel for the Minister submits that there was no principle by which the Minister should be taken to have had constructive knowledge of the State Act or the notice; and even if the Minister could be said to have had constructive knowledge of the State Act and/or notice, the fact that the Minister did not take it or them into account did not deprive the applicant of the possibility of a successful outcome on his application for revocation of the delegate's decision. Rather, the matters the Minister allegedly did not take into account generally went to the risk of reoffending, not the harm that would be occasioned should that risk materialise, which is what the Minister focused on in his reasons.

57    The Minister submits that there was no possibility that the outcome in this case would have been any different if the Minister's attention had been drawn to the reporting requirements of the State Act.

58    In particular, the Minister submits that the risk of reoffending had been assessed as low and that, even if the Minister had taken into account the terms of the State Act and the reporting obligations, that low assessment could not have been improved on, so far as the applicant was concerned. The Minister submits that the consideration of the risk to the Australian community was relevant to the Minister's decision-making and that he took that consideration into account.

59    In my view, the applicant's case, on the grounds advanced, fails.

60    While one can readily understand how the terms of the State Act and notice could be relevant to the making of the Minister's decision under the Migration Act, particularly because they may possibly assist in assessing how much of a risk the applicant might be to the Australian community if allowed to stay in Australia having regard to his reporting obligations, it is difficult to conclude that there was anything in the Act, including the terms of the Minister's discretionary power to revoke a delegate's character decision, that made the State Act provisions a mandatory consideration the Minister was bound, in Peko-Wallsend terms, to take into account in his decision-making.

61    While the Act is something that, quite plainly, might be regarded by the Minister, and there may even be a case for suggesting that in the pursuit of good public administration the Minister would take State and Territory based legislation of this kind into account when exercising the discretion, none of that, in my view, makes the terms of the State Act in this case a mandatory relevant consideration the Minister was bound to take into account.

62    Indeed, the applicant, in his submissions, recognised this difficulty by propounding the terms of the State Act as an "ancillary" relevant consideration. It is at that point of his submission that the mandatory consideration argument begins to fall down. The applicant constructs an approach to decision-making which, if adopted, would mean that the Minister needed to have regard to the State Act. The difficulty with that approach is that there may be more than one way for a Minister to approach decision-making in this area. While the applicant says any "rational" decision-making process should proceed in the manner he proposed, I am not satisfied that there was anything irrational about the particular decision-making approach that the Minister in fact adopted.

63    In this case, indeed, the applicant does not proceed on the basis that the Minister's decision was irrational or lacked an evident and intelligible basis, and so, in terms of Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 was a legally unreasonable decision. Plainly, it was not irrational in those terms.

64    As a result, I am not satisfied that the Minister's failure to take into account the State Act and/or the notice indicated a decision-making process that involved jurisdictional error.

65    It is therefore not necessary to address the further question whether the Minister had judicial notice of the State Act and/or the notice issued under it. The finding of no jurisdictional error I have just made assumes that the Minister would not be ignorant of State and Territory based legislation like the State Act.

66    In a federal system like Australia's, it may be accepted, in my view, that the Minister would have knowledge of relevant State and Territory based legislation requiring sex offenders to report to the authorities.

67    But, as I say, it is not necessary finally to decide that question because, even assuming such awareness, no jurisdictional error is demonstrated by the Minister's failure to advert to such reporting obligations in the decision affecting the applicant in this case.

68    In these circumstances, the judicial review application, subject to what follows, should be dismissed.

69    There is currently pending before the High Court of Australia a matter in which the constitutional validity of s 501(3A) – which is relevant in this case – is challenged as purporting to confer the judicial power of the Commonwealth on the Minister. See Falzon v Minister for Immigration and Border Protection [2017] HCA Trans 84 (11 April 2017).

70    Pending the resolution of that matter, which plainly could affect the final outcome in this matter, it seems to me appropriate to make orders that would permit the applicant to amend his application depending on the outcome in Falzon.

71    In those circumstances, it would now appear appropriate for the Court to make the following orders.

orderS

72    The Court orders:

(1)    Subject to the following orders, the application be dismissed.

(2)    The application be stood over until two weeks after the determination of Falzon v Minister for Immigration and Border Protection [2017] HCA Trans 84 (11 April 2017), No S31 of 2017, by the High Court of Australia.

(3)    The applicant pay the respondent's costs, as agreed or assessed, of the application so far as it concerns the non-constitutional grounds considered in this judgment.

(4)    Liberty to apply on 24 hours' notice.

Associate:

Dated:    29 May 2017