FEDERAL COURT OF AUSTRALIA

Applicant in WAD 531/2016 v Minister for Immigration and Border Protection [2018] FCA 27

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for judicial review filed on 8 November 2016 is dismissed.

2.    The applicant is to pay the first respondent’s costs of the application as agreed or assessed.

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

REASONS FOR JUDGMENT

SIOPIS J:

1    This is an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), made on 20 October 2016. The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (then known as the Minister for Immigration and Citizenship) (the Minister), made on 27 September 2011, to cancel the applicant’s skilled migrant visa on character grounds pursuant to s 501(2) of the Migration Act 1958 (Cth).

BACKGROUND

2    The applicant is a 46 year old citizen of India from Tamil Nadu. The applicant was granted a skilled migrant visa. The applicant and his family, comprising his wife, step-daughter (from his wife’s previous marriage) and son, immigrated to Australia, arriving on 22 March 2009. The applicant’s step-daughter was born in 1995 and his son was born in 2004.

3    On 11 January 2011, the applicant pleaded guilty to, and was convicted in the District Court of Western Australia of, nine sexual offences against his step-daughter who was then a child. The offences for which he was convicted occurred during the period of 1 February 2010 to 20 April 2010 and were the following:

(a)    “indecent dealings with a child who is a lineal relative or defacto child” – 7 counts;

(b)    “attempted knowingly sexually penetrated a child who was a lineal relative” – 1 count; and

(c)    “indecently recorded a child who was a lineal relative or defacto child” – 1 count.

4    The applicant was sentenced to an overall term of 36 months’ imprisonment, backdated to April 2010, with a non-parole period of 18 months.

5    The applicant was charged with the offences as a consequence of his step-daughter reporting the applicant’s conduct to the chaplain and psychologist at her school.

6    On 26 May 2011, the Department of Immigration and Citizenship (the department) informed the applicant that consideration was being given to the cancellation of his skilled migrant visa. Subsequently, in July and August of 2011, the applicant provided the department with an extensive documentary response in opposition to the cancellation of his visa.

7    On 28 September 2011, a delegate of the Minister cancelled the applicant’s visa on character grounds, pursuant to s 501(2) of the Migration Act.

8    The applicant applied to the Tribunal for review under s 500 of the Migration Act. On 21 December 2011, the Tribunal affirmed the delegate’s decision to cancel the applicant’s visa.

9    The applicant was released from gaol on parole on 30 January 2013 and was immediately taken into immigration detention, where he remains. To date, the applicant has spent almost eight years in gaol and immigration detention. During that time, he has undertaken a number of courses and activities, including sex offender treatment and rehabilitation programs.

10    In 2014, the applicant applied for and obtained an extension of time from this Court in which to apply for judicial review of the 2011 Tribunal decision.

11    On 14 July 2015, Gilmour J set aside the 2011 Tribunal decision and remitted the matter back to the Tribunal to be heard and determined according to law (Applicant in WAD230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705).

12    The matter was remitted to the Tribunal and a differently constituted Tribunal affirmed the decision of the delegate to cancel the applicant’s visa.

13    By this application, the applicant now seeks judicial review of that decision.

THE TRIBUNAL’s DECISION

14    The Tribunal’s decision is lengthy, and I set out a brief summary of that decision below.

15    The primary issue before the Tribunal was whether the discretion conferred by s 501(2) of the Migration Act to cancel a visa on character grounds, should be exercised to cancel the applicant’s visa.

16    Section 501(2) provides as follows:

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.

17    The Minister has, pursuant to s 499 of the Migration Act, given written directions as to the exercise of the discretion under s 501(2). Those directions are set out in a document referred to as Direction No 65 “Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA” (Direction 65).

18    It is Part A of Direction 65 which identifies the considerations relevant to determining whether to exercise the discretion to cancel a visa under s 501(2). Relevantly, Direction 65 identified the following primary considerations to which regard was to be had:

(a)    Protection of the Australian community from criminal or other serious conduct;

(b)    The best interests of minor children in Australia;

(c)    Expectations of the Australian Community.

19    Direction 65 also stated that in deciding whether to cancel a visa, other considerations, where relevant, must also be taken into account, which include, but are not limited to, the following:

(a)    International non-refoulement obligations;

(b)    Strength, nature and duration of ties;

(c)    Impact on Australian business interests;

(d)    Impact on victims;

(e)    Extent of impediments if removed.

20    Before specifically addressing the relevant considerations in Direction 65, the Tribunal made observations about the credibility and reliability of the applicant’s evidence.

21    The Tribunal had concerns about inconsistencies in the applicant’s evidence in relation to four matters. These were:

(a)    the extent to which the applicant had engaged in sexual misconduct with his step-daughter whilst they still lived in India, and, in particular, when that misconduct had begun;

(b)    whether the applicant’s sexual misconduct with his step-daughter was accompanied by force;

(c)    whether the sexual misconduct the subject of the offences, occurred because his step-daughter gave him a “look” which he misinterpreted; or whether the misconduct occurred because he developed inappropriate thoughts after he touched his step-daughter’s neck whilst checking her temperature and then acted on those inappropriate thoughts; and

(d)    whether the applicant knew that his sexual misconduct with his step-daughter was unlawful and wrong.

22    The Tribunal expressed doubts as to the credibility of the applicant on the basis of inconsistent statements which the applicant had made to different persons, before, and during, his detention about the first three matters.

23    As to the fourth matter, the Tribunal observed that the applicant had, during his detention, said to counsellors, that he did not believe that his sexual misconduct with his step-daughter was wrong, other than in the sense that he was being unfaithful to his wife. The Tribunal found that this statement, and other statements made by the applicant to similar effect, were not credible in light of the applicant’s evidence that he had attended a Christian church in India. The Tribunal went on to say that it was a matter of common knowledge that sexual relations with children was unlawful and wrong. The Tribunal went on to say that one did not need a fine understanding of the law to appreciate that.

24    The Tribunal also stated that the difficulties arising from the inconsistencies in the applicant’s account of events cast doubt on the reliability of psychological and other reports which had relied upon the truth of his account.

25    The Tribunal concluded, however, that, notwithstanding those concerns, the applicant’s asserted difficulties with the English language may have affected his understanding and clear communication of relevant details and, therefore, the Tribunal would carefully evaluate and weigh the applicant’s evidence in considering all of the material.

Primary considerations

26    In relation to the first “primary consideration”, namely, the protection of the Australian community from criminal and other serious conduct, the Tribunal accepted that the risk of the applicant re-offending was low, based on the psychological evidence.

27    However, the Tribunal stated that despite accepting the low risk of the applicant re-offending, “the limit of tolerance is reached” such that even a low risk is unacceptable when weighed against the “very serious nature of his child sex offences and the potential for great harm to be caused to individuals, and children, should [the applicant] re-offend”.

28    In evaluating evidence relevant to the second “primary consideration”, the Tribunal accepted that on the basis of psychological evidence and the evidence of his wife and step-daughter, the cancellation of the applicant’s visa and his return to India “would be likely to have a negative and damaging effect” on his son. Notwithstanding the fact that the applicant’s wife and son had support networks in the expatriate Indian or Tamil communities or the church community in which they interacted in Australia, the Tribunal did not consider that those networks would necessarily “amount to a parental role” in respect of his son should the applicant be returned to India.

29    Furthermore, the Tribunal accepted that, despite electronic means of keeping in contact and the possibility of visits by his wife and son to India, the applicant’s physical separation from his son by reason of being returned to India would be “emotionally and, perhaps, psychologically difficult” for his son.

30    On balance, the Tribunal considered that the negative impact on the son of the applicant’s visa being cancelled and being removed to India, weighed against cancelling the applicant’s visa. This was despite the weight of important countervailing considerations, such as the potential disruption to his son’s life if the applicant were to re-offend.

31    The Tribunal then considered the expectations of the Australian community, weighing the expectation that non-citizens should comply with Australian laws and the expectation that the visa of a non-citizen who commits serious criminal offences should be cancelled, against various considerations weighing in the applicant’s favour. One such consideration was the Australian community expectation that a child will be raised by both of his or her parents and that there be some tolerance or leeway where an offender has admitted guilt, expressed remorse and undergone rehabilitation.

32    Finally, the Tribunal also observed that his wife, son and step-daughter expressed a preference that the applicant’s visa not be cancelled.

33    The Tribunal concluded that the balance weighed in favour of cancelling the applicant’s visa, “but not heavily so”.

Other considerations

34    In weighing the other considerations, the Tribunal noted that it did not, strictly, need to consider the issue of non-refoulement as the applicant’s application for a protection visa was, at that time, before a differently constituted Tribunal. Nonetheless, the Tribunal noted the applicant’s submissions on this issue and observed that, “in general terms it is conceivable that the Applicant may encounter prejudice as a result of his criminal record of child sex offences in Australia if he is forcibly returned to India…it is possible that he may experience psychological, financial and vocational hardship and it is possible that he may be exposed to threat of harm or violence” from the step-daughter’s family or others, as the applicant had claimed.

35    The Tribunal considered that the fact that the applicant offended within one year of his arrival in Australia, diminished any weight that could be given to his ties to Australia, even though, as the Tribunal observed, the applicant had attempted to engage positively with others whilst in custody and detention, and his family in Australia would face difficulties if he were to be returned to India. Overall, the Tribunal concluded that the applicant’s ties to Australia weighed against cancellation of his visa.

36    The Tribunal found that the consideration of any impact of the cancellation of the applicant’s visa on Australian business interests weighed neither for nor against cancellation of the applicant’s visa. The Tribunal reasoned that cancellation of the applicant’s visa would not significantly compromise the delivery of a major project or important service in Australia.

37    The Tribunal considered that the impact on the step-daughter of a decision not to cancel the applicant’s visa weighed against making a decision to cancel the visa. The Tribunal found that the applicant’s offending against the step-daughter had a “very substantial adverse impact on her”. The Tribunal also observed that as a result of the offending, the step-daughter experienced a sense of responsibility for the adverse effect on the family of her reporting the applicant’s sexual misconduct. Thus, the Tribunal considered that a decision not to cancel the applicant’s visa may go some way to assuage the step-daughter’s apparent feelings of responsibility and her sense of obligation to avoid further dislocation of the family for the sake of the son and their sibling relationship. In this regard, the Tribunal stated, that a decision not to cancel the applicant’s visa may mitigate the step-daughter’s fear of losing her family.

38    The Tribunal considered the extent of any impediments the applicant would face, if he were to return to India. First, the Tribunal observed that the applicant was raised as a Christian in Tamil Nadu, India, and that he has extended family there, including his mother, brothers and their families. The Tribunal observed that the applicant was in good health, and had training, qualifications and skills of a manual nature which would be expected to assist him in obtaining employment in India. The Tribunal accepted that the possibility existed that the applicant may face a risk of harm, as well as psychological, emotional and financial hardship if returned to India, however, “[t]hese possibilities cannot reasonably be predicted as probable on the present materials”. On balance, the Tribunal concluded that such considerations weighed against exercising the discretion to cancel the applicant’s visa.

The Tribunal’s conclusions

39    In concluding, the Tribunal observed that “[t]here is always difficulty where the best interests of minor children weigh against other primary considerations”, nevertheless, “the very serious nature of his offending conduct is such that even a low risk of recidivism is unacceptable”. The Tribunal concluded at [210]:

In my assessment, considerations relating to the best interests of the Son, the Applicant’s ties to Australia, the impact on the [step] Daughter should his visa not be cancelled and impediments to him returning to India are out-weighed by considerations relating to protection of the Australian community, and female children in particular, from the unacceptable risk, albeit low, that the Applicant might offend again and cause great harm, and by the weight of community expectation that a non-citizen who commits sexual offences against a child shortly after arriving in Australia should not be permitted to remain. Difficulties that may flow for the Wife, the Son, the [step] Daughter, and the Applicant himself, should his visa be cancelled, and the Applicant’s positive contribution, good conduct and efforts to rehabilitate himself during the period of his custody and detention weigh in the balance, but do not tip the scale sufficiently to change the result.

THE REVIEW

40    On 8 November 2016, the applicant filed a misconceived “notice of appeal” in this Court, which I will treat as a valid application for judicial review of the Tribunal’s decision pursuant to s 476A of the Migration Act.

41    The applicant relied on nine grounds of review contained in a lengthy 20 page amended application for judicial review (which he called “an amended notice of appeal”), as follows (particulars omitted):

1.    The Administrative Appeals Tribunal’s…decision was affected by jurisdictional error by not giving primary weight to the best interest of my son.

2.    I did not receive a fair hearing before the Tribunal…

3.    The AAT’s decision is affected by apprehended and/or actual bias.

4.    The Tribunal’s Conclusion in the absence of probative evidence is an error of law.

5.    The Tribunal failed to properly consider the mitigating factors for my offending which were before the Tribunal, in my written statement, in the experts’ reports and in their oral evidences [sic] to the Tribunal when considered [sic] the serious nature of my conduct.

6.    The Tribunal focused exclusively on the nature of my offending conduct and inappropriate behaviour towards my stepdaughter in India, in assessing my risk of re-offending and failed to do its statutory task.

7.    The Tribunal’s decision is affected by unreasonableness and/or irrationality or illogicality.

8.    The Tribunal failed to take into account my employment links in Australia.

9.    The Tribunal did not properly consider the character references from my referees and their oral evidences [sic] about my reformed character.

42    The applicant sought to read two affidavits at the hearing, one was sworn on 13 February 2017, and the other was sworn on 14 March 2017. Each of the affidavits sought to introduce into evidence documents which post-date the Tribunal hearing and were, therefore, not before the Tribunal. The first affidavit also included a document that was already in the Court book.

43    I made a preliminary ruling at the hearing on 22 March 2017 that the affidavits were for that reason inadmissible and they were not admitted into evidence. I confirm that ruling.

Ground one

44    The first ground of review is that the Tribunal fell into jurisdictional error by “not giving primary weight to the best interest of my son”.

45    For the reasons which follow, I do not accept this contention.

46    The Tribunal plainly recognised that one of the primary considerations referred to in Direction 65 was the best interests of minor children of the visa holder in Australia.

47    At [123]-[136] of its reasons for decision, the Tribunal gave detailed consideration to the impact on the applicant’s son of the cancellation of the applicant’s visa. The Tribunal had regard to the evidence of the applicant’s wife, Mr Steve Jobson and Ms Ciara Togher, both professional psychologists, and also to the evidence of lay persons who the applicant had called as witnesses as to the close and supportive relationship which the applicant had with his son.

48    The Tribunal accepted that the applicant’s physical separation from his son would be “emotionally and, perhaps, psychologically difficult” for his son. The Tribunal found that the adverse impact upon the applicant’s son of the separation from his father weighed against the cancellation of the visa.

49    Insofar as the applicant’s contention is that the Tribunal fell into jurisdictional error by not finding that the adverse consequences for his son outweighed all other considerations such that the applicant’s visa should not have been cancelled, that contention does not go to jurisdictional error. The question of the weight to be given to each of the material considerations is a matter for the Tribunal (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 280-282).

50    This ground of review is dismissed.

Ground two

51    The second ground of review is that the applicant did not get a fair hearing before the Tribunal.

52    In the amended document setting out his grounds of review, the applicant referred in 12 dot points to a number of events or circumstances which he alleged occurred during the Tribunal hearing. These include allegations such as that “[t]he environment did not feel approachable and fair to me”; that the applicant’s wife had reported to him that the Tribunal member had stared at the applicant and that “his look was tyrannical”; that the Tribunal member had stopped the applicant from asking some questions; that the Tribunal member had made comments which embarrassed the applicant about his Christian faith; that the Minister’s counsel had “laughed/smiled” at the applicant when the applicant stood up to answer a question from the Tribunal member and that the Minister’s counsel had made the applicant “feel ridiculed”.

53    However, there was no evidence before the Court as to the circumstances of the hearing and no evidence supporting any of the allegations as to the conduct of the Tribunal member or the other events or circumstances mentioned in the 12 dot points in the applicant’s amended grounds of review document. The transcript of the hearing before the Tribunal was not in evidence.

54    In this regard, I observe that on 1 December 2016, the Court made orders that, other than the Court book, all evidence to be relied upon by the parties must be presented by way of affidavit, and, if a party sought to rely on evidence of the contents of any sound recording, the party must file and serve a transcript verified by an affidavit. The applicant did not take advantage of this opportunity to adduce into evidence the transcript verified by affidavit, nor any other evidence in support of the assertions made in support of this ground of review.

55    In the absence of any evidence as to the events and circumstances of the Tribunal hearing, this ground of review is dismissed.

Ground three

56    The third ground of review was that the Tribunal’s decision was attended by apprehended or actual bias.

57    The applicant contended that the Tribunal prejudged his case and that the Tribunal member’s “mind was not sober”.

58    In support of this ground of review, the applicant has included in his amended grounds of review document, contentions which run to close to five pages.

59    The substance of the applicant’s lengthy contentions in support of this ground of review complained that the Tribunal did not give sufficient weight to the steps which the applicant had taken to participate in rehabilitation programs and the beneficial consequences of those programs. Further, the applicant’s contentions also take issue with some of the findings made by the Tribunal as to the inconsistencies in his evidence about the matters referred to at [21] above.

60    In his written contentions, the applicant also made reference to comments that had been relayed to him by lay persons, such as a SERCO manager and his case manager at the Perth immigration detention centre, that they had heard that he had argued his case well before the Tribunal.

61    It is well-established that an allegation of bias must be distinctly made and proved. The applicant has failed to adduce evidence which meets that standard.

62    The fact that the Tribunal made the findings identified by the applicant, which were open to the Tribunal to make, but with which the applicant disagrees, does not establish that the Tribunal was biased, nor that there are circumstances which give rise to an apprehension of bias on the part of the Tribunal. The same is true in relation to the applicant’s anecdotal assertions in his amended grounds of review document of the views held by third parties as to how well he presented his case to the Tribunal.

63    This ground of review is dismissed.

Ground four

64    By this ground of review, the applicant contended that the Tribunal made findings in the absence of probative evidence.

65    More specifically, the applicant contended that the Tribunal’s reasons for decision at [73], [96], [98] and [113] were findings which required expert evidence and the Tribunal was not qualified to express such findings in the absence of expert evidence.

66    Paragraph 73 is contained in that part of the Tribunal’s reasons where the Tribunal considered the previous inconsistent statements made by the applicant. At [73], the Tribunal referred to a statement in a report prepared after the applicant had completed a sex offender treatment program. The report is referred to as the “completion report”. The statement in the completion report was that the applicant “gained insight and understanding into his offending behaviour and accepted full responsibility for his offending”. The Tribunal having referred to the statement went on to question the weight that could be given to that statement when the applicant himself had not made a full disclosure to the authors of the completion report that he had engaged in sexual misconduct with his step-daughter in India before migrating to Australia.

67    In my view, that is an observation which was open to the Tribunal to have made. The assessment of the weight to be given to evidence, including expert evidence, is a matter for the Tribunal.

68    The applicant also impugned the observations of the Tribunal at [96] and [98] of its reasons for decision.

69    In each of these paragraphs, the Tribunal referred to some other statements made in the completion report, and then went on to observe, in effect, that the weight to be given to the statements in the completion report may be adversely affected by the failure of the applicant to have made a full disclosure to the authors of the report as to the extent of his sexual misconduct with his step-daughter when she was 12 or 13 and whilst the family was living in India before migrating to Australia.

70    As previously mentioned, the weight to be given to the completion report was a matter for the Tribunal. The fact that the Tribunal expressed caution in relation to the weight to be accorded to the report for the reasons it identified, was, in the circumstances, open to the Tribunal.

71    Next, the applicant complained about the Tribunal’s finding at [113].

72    At [113] of the reasons for decision, the Tribunal stated:

The preponderant weight of the evidence stands against the proposition that the Applicant poses no risk of sexual re-offending. As Mr Jobson explained, simply because he has committed child sex offences, there is a risk, albeit presently at a low level, that he will re-offend again. Whether the present low risk of the Applicant re-offending will endure over the long-term is not something that can be foretold or predicted with accuracy now. While he remains in detention, at a remove from the community and not exposed to circumstances that may bear upon his behaviour and the risk of him re-offending, the risk to the Australian community is low. What will happen if he is released into the Australian community and he is able to operate as a free agent has not been tested. On the expert opinion of Dr O’Daly making predictions of this kind is somewhat speculative. Mr Jobson was also of this opinion.

(Emphasis added.)

73    The applicant complained that the highlighted sentence showed that the Tribunal had misunderstood the evidence of Mr Jobson because Mr Jobson’s evidence was that there was a low risk of the applicant re-offending in the community, but the Tribunal had treated Mr Jobson’s low risk assessment as reflecting the risk of the applicant re-offending whilst in detention.

74    On one reading of the impugned sentence, it could perhaps be said that the Tribunal may have misconstrued Mr Jobson’s evidence. However, in my view, this sentence must be assessed in the context of the whole of the Tribunal’s reasons and not in isolation. In my view, when the whole of the Tribunal’s reasons are viewed, it is apparent that the Tribunal did appreciate that the experts’ assessments estimated only the risk of the applicant re-offending in the community. The Tribunal was satisfied that the risk of re-offending related to situations “similar to his previous offending conduct”, namely, “in respect of unsupervised contact with female children under 16 years old” at [117] of the Tribunal’s reasons. It is also apparent that at [113], the Tribunal was dealing with an assertion by the applicant that there was no risk of him re-offending.

75    Accordingly, although [113] of the Tribunal’s reasons is ambiguously expressed, the essence of the sentiment of the Tribunal is that whilst the experts might assess that the risk that the applicant would re-offend on release is low, such an assessment is always speculative as it relates to the future and has not been tested because the applicant has not been exposed to the community since his conviction. There is no jurisdictional error arising from the fact that the Tribunal expressed itself in an awkward fashion.

76    It is apparent from [121] of its reasons that the Tribunal appreciated that it was the experts’ view that the risk of the applicant re-offending, if released into the community, was low. However, the Tribunal went on to say that even a low risk was an unacceptable risk.

77    The next paragraph to which the applicant objected is [116] of the Tribunal’s reasons for decision.

78    That paragraph refers to that part of Mr Jobson’s report where Mr Jobson dealt with factors that may have influenced the applicant’s misconduct. Mr Jobson opined that the applicant had an extreme level of insecurity related to his perception of his penis size; and that such was the applicant’s level of distress arising from this insecurity, that it was likely that he would have been given a diagnosis of body dysmorphic disorder - which is a personality disorder. Mr Jobson then went on to say in his report that it was likely that the applicant had some level of body dysmorphic disorder but that the applicant could “effectively learn to manage the manifested consequences” of the disorder by undergoing further counselling. The Tribunal then went on to say that such counselling had not taken place and it was not possible to predict whether the risk of the applicant re-offending would change once he had undertaken counselling.

79    There is no jurisdictional error in relation to the Tribunal’s observations in [116]. The Tribunal was referring in that paragraph to comments made by Mr Jobson in his report under the heading “Outstanding treatment needs”. In that part of Mr Jobson’s report, Mr Jobson said:

To assist him in this regard, it is further suggested that he would do well to seek psychological intervention for the following aspects of his life:

•    Maintenance and continued improvement of his body image. While the possibility of some level of Body Dysmorphic Disorder may remain, as with all psychological disorders, the individual can effectively learn to manage the manifested consequences;

80    It was open to the Tribunal to observe that the counselling in respect of the applicant’s psychological issues recommended by Mr Jobson had not yet been effected and, therefore, it was not possible to predict how this treatment, if undertaken, would impact on the applicant’s risk of re-offending. That statement by the Tribunal does not disclose jurisdictional error.

81    The next paragraph of the Tribunal’s reasons for decision to which the applicant objected was [118].

82    In this paragraph, the Tribunal observed that the risk of the applicant re-offending was low but that the assessment had been made whilst the applicant was in detention and there was uncertainty as to whether or not this level of risk would be sustained in the long term if the applicant was released and able to operate as a free agent in the community. The Tribunal said that it was inclined to agree with the argument of counsel for the Minister that any risk that the applicant may re-offend was an unacceptable risk.

83    In my view, the Tribunal did not fall into jurisdictional error in its reasoning in [118].

84    The Tribunal correctly recognised that the expert evidence was to the effect that there was a low risk that the applicant would re-offend but found that there was some inherent uncertainty associated with that assessment, and that even with a low risk assessment, there remained some risk that he would re-offend, and that that was an unacceptable risk. In my view, it was open to the Tribunal to reason in this way.

85    In my view, the applicant has failed to demonstrate that there was any jurisdictional error by the Tribunal in ground four.

86    This ground of review is dismissed.

Ground five

87    In ground five of the grounds of review, the applicant alleged that the Tribunal failed to consider properly the mitigating factors for his offending when it considered the serious nature of his conduct.

88    The applicant said that the mitigating factors to which he referred were set out at pages 1,192-1,195 of the Court book.

89    Those mitigating factors relate to the applicant’s upbringing in India, and his sexual insecurities and naivety.

90    The Tribunal member was not expressly required to consider those factors under a separate heading, but those factors were taken into account by the sentencing judge in determining the sentence which was to be imposed on the applicant; and the Tribunal did indirectly have regard to those mitigating factors in assessing the seriousness of the applicant’s offending conduct.

91    Further, those factors are also referred to in the expert reports and were taken into account by the Tribunal when considering the question of the applicant’s risk of re-offending.

92    Thus, for example, at [116] of the reasons for decision, the Tribunal expressly referred to the fact that Mr Jobson had identified factors which may have influenced the applicant’s offending conduct.

93    Ground five is dismissed.

Ground six

94    In ground six of the grounds of review, the applicant contended that the Tribunal focused exclusively on the nature of the offending conduct and inappropriate behaviour towards his step-daughter in India in assessing his risk of re-offending, and failed to do its statutory task.

95    In his amended grounds of review document, the applicant referred to evidence of the experts that he was assessed as a low risk of re-offending and, in effect, contended that on the basis of this evidence, the Tribunal fell into jurisdictional error in finding that as a person who was a low risk of re-offending, the nature of his crimes were so serious that the protection of the Australian community outweighed other considerations with the consequence that the applicant’s visa should be cancelled.

96    During oral argument, the applicant referred to two cases in support of his contention that the Tribunal had fallen into jurisdictional error in the assessment of the risk he would pose to the Australian community should he be released into the community.

97    The first case was WKCG v Minister for Immigration and Citizenship (2009) 110 ALD 434 (WKCG) and the second case was SZOQQ v Minister for Immigration and Citizenship (2012) 287 ALR 668 (SZOQQ).

98    Each of these cases was concerned with an application for a protection visa and whether the applicant for the protection visa came within the terms of Article 33(2) of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as modified by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967. That Article provides for an exception to the prohibition of “refoulement” where the visa applicant, having been convicted of a serious crime, constitutes a danger to the community of the country in which the applicant is residing.

99    In the case of WKCG, Deputy President Tamberlin QC observed that the test of danger to the community was whether there is a real or significant risk or possibility of harm to one or more members of the Australian community. In that case, Deputy President Tamberlin QC considered that, on the evidence, the applicant constituted such a low risk to the Australian community that he was not a danger.

100    In SZOQQ, the Full Court of this Court in dismissing the appellant’s appeal referred to the test identified by Deputy President Tamberlin QC but did not endorse it, as the correctness of the test was not in issue in the appeal. I observe for completeness that SZOQQ was reversed on appeal to the High Court (SZOQQ v Minister for Immigration and Citizenship (2013) 251 CLR 577) without any discussion as to the correct test.

101    However, neither of WKCG nor SZOQQ is of assistance to the applicant as each case was concerned with a statutory regime, other than that which applies to a decision-maker exercising the power to cancel a visa under s 501 of the Migration Act.

102    Also, the observations from the case of Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 (Tanielu) extracted by the applicant in his written contentions refer to authorities which dealt with the term “unacceptable risk” under statutory regimes in State legislation from Victoria, Western Australia and Queensland respectively. Relevantly, in Tanielu, Mortimer J went on to say of those authorities at [100]:

Reference to these authorities is not for the purpose of equating the task under s 501(2) with the tasks with which the courts were dealing.

103    As mentioned, the Minister had issued Direction 65 for decision-makers in respect of the exercise of the power to cancel a visa under s 501 of the Migration Act.

104    Paragraph 9.1.2 of Direction 65 relevantly provides:

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1)    In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2)    In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

a)    The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)    The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i.    information and evidence on the risk of the non-citizen re-offending; and

ii.    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

105    The question of the risk of the applicant re-offending and the attendant risk to the Australian community is assessed at [90]-[122] of the Tribunal’s reasons.

106    Contrary to the applicant’s contentions, the Tribunal did not focus exclusively on the nature of the applicant’s offending conduct and his inappropriate behaviour towards his step-daughter in India, in assessing his risk of re-offending.

107    Rather, as is clear from its reasons, the Tribunal had regard to the fact that the applicant had participated in rehabilitation programs and to the expert reports and the oral evidence of the experts, in assessing the applicant’s risk of re-offending.

108    Although the Tribunal did express some reservations about the extent to which the applicant had made a full disclosure of his misconduct in relation to his step-daughter in India, and his reliability, the Tribunal, nevertheless, accepted that the applicant had undergone a number of rehabilitation programs; and that as a consequence, his risk of re-offending was no longer “low to medium” but was “low”.

109    The assessment which the Tribunal made was in accordance with Direction 65 on the evidence which was before it. In my view, the Tribunal did not fail to carry out its statutory task in assessing the risk to the Australian community should the applicant re-offend.

110    Accordingly, ground six is not made out and is dismissed.

Ground seven

111    By this ground of review, the applicant contended that the Tribunal’s decision was affected by “unreasonableness and/or irrationality or illogicality”.

112    In support of this ground of review, the applicant said that the Tribunal had given disproportionate weight to the protection of the community in the absence of a proper assessment of the likelihood of his re-offending. The applicant said that he had made significant gains in addressing his offending conduct in sex offender treatment and rehabilitation programs and so did not pose a “significant and unacceptable risk to the community”.

113    In support of this contention, the applicant said that he had been granted parole. The applicant referred to the following statement made about him by the Prisoners Review Board of Western Australia (the Parole Board):

In making this decision the Board took into account the release conditions in s 5A of the Sentence Administration Act, 2003, giving paramount consideration to the safety of the community. The Board decided that your release would not present an unacceptable risk to the safety of the community due to:

1.    The deterrent effect of his first custodial sentence;

2.    Participation and completion of the Medium Sex Offender Treatment program and has been assessed as low risk of re-offending; and

3.    There is no risk to the victim given she now resides with a different family.

114    The applicant went on to contend that it was clear from this statement that he did not present an unacceptable risk to the safety of the community.

115    The applicant also referred to the decision of the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) and, as I comprehend it, relied upon the following observations of French CJ at [28]:

Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said, that although a decision-maker has kept within the four corners of the matters it ought to consider “they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it”. In such a case the court may interfere. That limiting case can be derived from the framework of rationality imposed by the statute. As explained by Lord Greene MR, it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.

(Footnote omitted.)

116    I take the applicant to be contending that the Tribunal decision in question was to be characterised as “arbitrary or capricious”; or to have “abandon[ed] common sense”. Alternatively, that the Tribunal’s conclusion was “so unreasonable that no reasonable authority could ever have come to it”.

117    The Tribunal’s conclusion was that the risk which the applicant posed to the community, albeit, low, was, nevertheless, in view of the serious nature of the harm that the applicant’s re-offending may cause to the community, an unacceptable risk.

118    As mentioned, that conclusion was reached after the Tribunal had accepted that the expert evidence was that the risk of the applicant re-offending was low.

119    The Parole Board, in considering the applicant’s application for parole, exercised its statutory function under the Sentence Administration Act 2003 (WA) and took into account the release considerations in s 5A of that Act. In that capacity and applying those statutory criteria, the Parole Board came to the view that the applicant did not pose an unacceptable risk to the safety of the community. That decision was made by the Parole Board in January 2013.

120    The Tribunal, however, was exercising a different statutory function to the Parole Board and the Tribunal was directed to have regard to the considerations under Direction 65. The fact that the Parole Board came to the view that for the purposes of the Sentence Administration Act, the release of the applicant would not pose an “unacceptable risk to the safety of the community”, does not mean that, therefore, the Tribunal’s finding was jurisdictionally flawed on the grounds that it was unreasonable.

121    As French CJ recognised in Li, within the “area of decisional freedom”, reasonable minds may differ. This is particularly the case where the two bodies were operating under two different statutory regimes.

122    Further, and, significantly, as mentioned, the Tribunal’s assessment was made on the basis of the evidence which was before it. This included the expert evidence of Mr Jobson and Dr O’Daly which was not before the Parole Board.

123    It follows that ground seven is dismissed.

Ground eight

124    In this ground of review, the applicant contended that the Tribunal failed to take into account his “employment links” in Australia.

125    In support of this ground, the applicant stated in his amended grounds of review document that Pastor Ravikumar Rajaduria had given evidence saying that he could get the applicant a job in a chicken factory in Canning Vale, Western Australia.

126    Contrary to the applicant’s contentions, the Tribunal did have regard to the evidence of Pastor Rajaduria when considering the strength, nature and duration of the applicant’s ties to Australia. At [160] of the Tribunal’s reasons for decision, the Tribunal expressly refers to Pastor Rajaduria as having indicated a willingness to assist the applicant to obtain employment should he be released into the community.

127    Accordingly, ground eight is dismissed.

Ground nine

128    By this ground of review, the applicant contends that the Tribunal did not properly consider the character references from the applicant’s referees and their oral evidence about his reformed character.

129    In support of ground nine, the applicant contended that all of his referees acknowledged that he had disclosed his child sexual offending, including his misconduct in India, that he was sorry for his offending conduct and had taken full responsibility for that conduct, that he had completed sex offenders treatment and rehabilitation programs, had been rehabilitating himself very well, that his character had been reformed and that he was of good character.

130    The applicant contended that it was possible for a person who had engaged in criminal conduct in the past to reform and, thereafter, to be of good character.

131    The Tribunal did take into account the letters of support which the applicant obtained. This is apparent in [159] of its reasons where the Tribunal refers to the fact that the applicant had obtained letters of support from a number of people, some of whom the Tribunal named. The Tribunal referred specifically to these persons in the context of considering the applicant’s ties to Australia.

132    The gravamen of the applicant’s complaint, however, is that the Tribunal did not give weight to these persons’ views as to his reformed character. The question of the applicant’s character and the extent to which the applicant has reformed, is relevant to the question of his risk of re-offending. As mentioned, the Tribunal devoted a considerable part of its reasoning to assessing this risk. In doing so, it had regard specifically to the evidence of persons with expertise in this area. Also, as mentioned before, having had regard to that expert evidence, the Tribunal came to the view that there was only a low risk of the applicant re-offending if the applicant was released back into the community.

133    The fact that the Tribunal did not place weight upon the opinion of the lay persons as to the character of the applicant in assessing the risk of re-offending, did not disclose jurisdictional error. It was a matter for the Tribunal to determine the evidence upon which it would place weight in assessing that question.

134    Accordingly, ground nine is dismissed.

135    The applicant’s application for judicial review is dismissed.

Associate:

Dated:    31 January 2018