FEDERAL COURT OF AUSTRALIA

FPU18 v Minister for Immigration and Border Protection [2018] FCA 1606

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the respondent made on 16 August 2017 not to revoke the decision to cancel the applicant’s visa be set aside.

2.    The respondent determine the applicant’s application for revocation of the decision to cancel his visa pursuant to s 501CA of the Migration Act 1958 (Cth) according to law.

3.    Subject to paragraph 4, the respondent pay the applicant’s costs of the proceeding, to be fixed by way of a lump sum.

4.    If either party seeks a variation of the costs order in paragraph 3 or the directions in paragraph 5 to 8 below, they may give notice in writing to the Court and the other party within three business days.

THE COURT DIRECTS THAT:

5.    Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the applicant’s costs.

6.    In the absence of any agreement pursuant to paragraph 5 of these orders, within 21 days the applicant file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS).

7.    Within a further 14 days, the respondent file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).

8.    In the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the applicant’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The applicant, a citizen of New Zealand, came to Australia at the age of six or seven in the 1950s. He became a permanent resident of Australia at the age of 16 in 1966. He has resided in Australia for more than 50 years. He volunteered to join the Australian Army and fought for Australia in the Vietnam War. Following his active war service the applicant suffered from Post-Traumatic Stress Disorder (PTSD).

2    In the period 2011-2013, the applicant engaged in criminal offences involving accessing child pornography on the internet and possession of child abuse material. On 25 June 2014, the applicant was convicted of two offences relating to child pornography: he was convicted of one count of “Use carriage service for child pornography material” contrary to the Criminal Code Act 1995 (Cth) and one count of “Produce, disseminate or possess child abuse material” contrary to the Crimes Act 1900 (NSW). He was sentenced to two years imprisonment for the first offence and one year and three months imprisonment for the second offence. The total effective term of imprisonment was two years and three months, with a non-parole period of 15 months.

3    On 29 June 2015, a delegate of the Minister decided to cancel the applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (the cancellation decision). That subsection provides that the Minister must cancel a visa that has been granted to a person if: (a) the Minister is satisfied that the person does not pass the character test because they have a substantial criminal record or they have committed sexually based offences involving a child; and (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against the law of the Commonwealth, a State or a Territory. There is no issue that the applicant’s circumstances fell within the criteria for mandatory cancellation set out in s 501(3A).

4    The applicant applied, pursuant to s 501CA of the Migration Act, for revocation of the cancellation decision. On various dates, the applicant’s representative provided submissions on his behalf. Among other things, the applicant’s representative addressed the issue of the “risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct”, this being one of the issues highlighted in a Ministerial direction relating to such decisions. It was contended on behalf of the applicant that, given the nature of the applicant’s offending, being internet-based offending, “the removal of the applicant from Australia will not have the effect of reducing the risk to the Australian community from the commission of [the] same or similar offences as the offending material [the] subject of the charges may be readily downloaded or kept in a person’s possession as long as the applicant has access to [the] internet”. In support of a submission that there was a low risk of reoffending, the applicant provided a report of a forensic psychiatrist, Dr Stephen Allnutt.

5    On 22 July 2016, the Minister decided not to revoke the cancellation decision. This decision was later set aside, by consent, by this Court.

6    Further submissions were made on the applicant’s behalf and an updated report of Dr Allnutt was provided.

7    On 16 August 2017, the Minister again decided not to revoke the cancellation decision. I will refer to this decision not to revoke the cancellation decision as the Decision. The Minister signed a statement of reasons for the Decision on the same day (the Statement of Reasons). In the course of considering the “Risk to the Australian community”, the Minister referred to the submission outlined above. The Minister rejected the submission principally on the basis that the applicant had been assessed by Dr Allnutt as at the lower end of the spectrum, not only for child pornography offences “but also for ‘hands on offending’”.

8    The applicant has applied to this Court for judicial review of the Decision. By his amended originating application for review of a migration decision, the applicant relies on three grounds. In summary, the grounds are as follows:

(a)    the Decision was affected by procedural unfairness, in that the Minister failed to respond to a clearly articulated argument in respect of the applicant’s future risk of reoffending – the argument was to the effect that his rehabilitation would be better in Australia than in New Zealand; the risk of possessing child pornography on the Australian community would not be lessened by his removal to New Zealand, and therefore deporting the applicant would not protect the Australian community;

(b)    the Minister did not give proper, genuine or realistic consideration to the issue of the applicant’s future risk of reoffending in relation to the protection of the Australian community in light of the evidence before him and the applicant’s submissions made to him, and thereby failed to carry out his statutory task; and

(c)    the Minister failed to notify the applicant of an issue in the review, or failed to draw his attention to a dispositive issue that was not obviously known, being that the Minister would consider the risk of the applicant sexually offending against children in a “hands on” way, rather than reoffending by possessing further child pornography; the Minister thereby denied him procedural fairness.

9    For the reasons that follow, my conclusions in relation to the grounds raised by the applicant are as follows:

(a)    I reject the first and second grounds of review. The Minister was aware of the relevant submission made by the applicant and addressed the submission in the Statement of Reasons. The Minister gave proper, genuine and realistic consideration to the submission in the sense discussed in the cases. Accordingly, these grounds do not establish a denial of procedural fairness or a constructive failure to exercise jurisdiction.

(b)    In relation to the third ground, I consider this ground to be made out. The principal basis upon which the Minister rejected the applicant’s submission outlined above was that there was a risk of the applicant committing “hands on” offending. But none of the applicant’s offences involved “hands on” offending and there was no suggestion that the applicant had ever engaged in such conduct. The applicant was not on notice that the Minister would be considering such offending. Although the Minister relied on statements in Dr Allnutt’s reports, these statements appear to be directed to a single group of sexual offenders (relating to both child pornography and hands on offending) and arguably were not intended to address the risk that the applicant might engage in “hands on” offending. In the circumstances, it was a denial of procedural fairness for the Minister to rely on the risk that the applicant might engage in “hands on” offending as the basis for rejection of his submissions relating to the risk to the Australian community.

10    It follows that the Decision should be set aside and an order made that the Minister determine the applicant’s application for revocation of the cancellation decision according to law.

Key legislative provisions

11    It is convenient to set out the key legislative provisions of present relevance before setting out the facts. Section 501 of the Migration Act relevantly provides:

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

12    That provision refers, relevantly for present purposes, to paragraphs (6)(a) and (7)(c) of s 501, which provide as follows:

(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

…

(e)    a court in Australia or a foreign country has:

(i)    convicted the person of one or more sexually based offences involving a child; or

(ii)    found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or

…

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

…

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

13    Section 501CA provides:

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

(5)    If the Minister revokes the original decision, the original decision is taken not to have been made.

(6)    Any detention of the person that occurred during any part of the period:

(a)    beginning when the original decision was made; and

(b)    ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7)    A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.

Note:    For notification of decisions under subsection (4) to not revoke, see section 501G.

Background facts

14    The following statement of the background facts is based on the material in the Application Book. In particular, the facts are drawn from the Statement of Reasons.

15    The applicant arrived in Australia aged six or seven in the 1950s and became a permanent resident at the age of 16 years in 1966. He has resided in Australia since then.

16    The applicant volunteered to join the Australian Army in the late 1960s. He undertook basic training in New South Wales and Victoria. In 1969, he was posted to Vietnam, where he served in the First Armoured Regiment. Several months after he arrived in Vietnam, he was involved in extinguishing a fire that directly threatened an ammunition bunker, at one stage climbing on the bunker, without regard for his own safety. For this act of bravery, the applicant received a Mention in Despatches. At the expiration of a 12 month tour of active duty, the applicant volunteered again to extend his tour by several months, to help his regiment, as there was a shortage of non-commissioned officers at that time. The Minister, in the Statement of Reasons, accepted the submission that the applicant had “given service and made sacrifices that few naturalised citizens have or are required to make”.

17    After his army discharge, the applicant performed paid employment in a variety of roles including foreman, technician, motor vehicle and real estate salesman, property manager and property developer. The Minister, in the Statement of Reasons, accepted the submission that the applicant had “worked and paid taxes in Australia for almost all of his working life”.

18    The applicant is married to an Australian citizen. They married in 1986 and have two adult children together. Until his imprisonment (and subsequent immigration detention), the applicant lived with his wife in their home in New South Wales.

19    In the course of the applicant’s war service, he acquired PTSD, which continues to affect his life. The applicant also suffered from alcoholism following his war service. The Minister in the Statement of Reasons accepted the evidence that there was “a nexus between his war service, the PTSD, [the applicant’s] subsequent alcoholism and the offending which caused his visa to be cancelled”.

20    In 2011-2013, the applicant engaged in the offending that led to his being charged with child pornography offences.

21    On 13 March 2013, the Australian Federal Police executed a search warrant at the applicant’s home. Seven electronic devices were seized for forensic analysis, and child abuse material was located on five devices. Following analysis, the police identified many thousands of items of child abuse material. A proportion of the material was analysed in order to classify the images in levels of seriousness across five levels. The material was found to contain images at all levels of seriousness. The Australian Federal Police estimated that there were at least 100 different child victims depicted in the images and videos possessed by the applicant. The material before the Minister did not indicate whether the victims in the images downloaded by the applicant or found in his possession were Australian citizens or residents.

22    On 25 June 2014, the applicant was convicted of two offences: one count of “Use carriage service for child pornography material” and one count of “Produce, disseminate or possess child abuse material”. He was sentenced to a term of imprisonment of two years for the first offence and one year and three months imprisonment for the second offence. The total effective term of imprisonment was two years and three months, with a non-parole period of 15 months.

23    The applicant has not been convicted of any other criminal offences in Australia.

24    The applicant pleaded guilty to the offences.

25    The sentencing judge found the applicant’s offending to be “just below the middle of any scale constructed for such offences” and the Minister in the Statement of Reasons adopted this finding.

26    On 29 June 2015, a delegate of the Minister cancelled the applicant’s visa under s 501(3A).

27    In accordance with the statutory scheme, the applicant requested revocation of the cancellation decision, and made representations in support of that request. The applicant’s representative at this stage was Michael Gros. In a submission received by the Department of Immigration and Border Protection (the Department) on 27 July 2015, Mr Gros made submissions on the applicant’s behalf. The submissions responded to various issues identified in Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65), a Ministerial direction dated 22 December 2014. In correspondence sent to the applicant, it had been explained that he should address each paragraph in Pt C of Direction 65 that was relevant to his circumstances. That correspondence had also explained that if the decision-maker who made the decision regarding whether or not to revoke the cancellation decision was a delegate of the Minister, he or she was required to follow Direction 65. If, however, the Minister made the decision personally, he or she was not bound by the direction, “although Direction 65 provides a broad indication of the types of issues that the Minister is likely to take into account in deciding whether or not to revoke the decision to cancel your visa”.

28    In the submission received on 27 July 2015, under the heading “The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct”, which reflected one of the headings in Direction 65, Mr Gros acknowledged the seriousness of the offences and then submitted:

On the other hand, the very nature of the offences, the subject of the two convictions are such that the removal of the applicant from Australia will not have the effect of reducing the risk to the Australian community from the commission of [the] same or similar offences as the offending material [the] subject of the charges may be readily downloaded or kept in a person’s possession as long as the applicant has access to [the] internet.

29    This point was reiterated later in the submission. Mr Gros submitted that: both offences merely required access to an internet provider; accordingly, removal of the applicant from Australia to New Zealand “would not in any way diminish the risk” of the applicant committing the same type of offences; therefore, deportation would not have the effect of reducing the risk of commission of such offences against the Australian community, which was the stated objective of this particular primary consideration.

30    In an email submission dated 16 May 2016, Mr Gros submitted that the nature of the offences was such that “the removal of the offender would have no practical effect on him reoffending as it can be committed anywhere and there is no suggestion of [the applicant] having propensity to commit other offences involving young children or indeed requiring to undergo a treatment for any propensity”. Consequently, it was submitted, the legislative intention of protecting Australians and members of the community would not be achieved by the removal of the applicant from Australia.

31    In support of the request for revocation, the applicant relied on a report of Dr Allnutt dated 24 March 2014. The report expressed the opinion that the applicant manifested “a weighting of protective factors and a few perpetuating factors that can [be addressed] through treatment”. The report continued:

There is limited information that allows for an evidence-based opinion with regard to the risk of future recidivism. In this case I have been guided by the kinds of factors that are associated with increased risk of recidivism for people who engage in sexual offending in general and it is important for the Court to take into consideration that people who are convicted of child pornography crimes in the absence of a prior history of actual sexual offending might be a different population to those that engage in direct sexual offending with children.

Any opinion on risk of recidivism is more professional than scientific, identifies the at risk population that the person falls into, can fluctuate over time, and is of moderate accuracy.

Overall having regard to the information provided to me I believe that your client, in my clinical view, falls into a group of sex offenders at the lower end of the risk spectrum for future sexual recidivism both for child pornography and hands on offending.

32    On 22 July 2016, the Minister decided not to revoke the cancellation decision. This decision was set aside by a consent order made by this Court and the matter was remitted to the Minister.

33    After the matter was remitted to the Minister, the applicant provided further submissions in support of revocation of the cancellation decision. His agent at this stage was GLC Migration. In a submission dated 21 April 2017, GLC Migration addressed the issue “The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct” and reiterated the submissions of Mr Gros in this regard. They submitted:

We strongly submit that any risk to the Australian community is not mitigated by physical removal of [the applicant] from Australia. To the contrary, we submit that any future risk to the Australian community and to the community as a whole would be mitigated by ensuring [the applicant’s] rehabilitation. We note that due to the nature of the internet, an individual can download child pornography regardless of their geographic location.

(Emphasis in original.)

34    A further report of Dr Allnutt, dated 22 April 2017, was provided. This report contained statements to the same effect as the statements in the first report that have been quoted above.

35    On 11 August 2017, the Department provided a submission to the Minister. Attached to the submission were relevant documents, including the submissions of Mr Gros and GLC Migration and the reports of Dr Allnutt.

36    On 16 August 2017, the Minister made the Decision and signed the Statement of Reasons.

37    The Minister stated, at [11] of the Statement of Reasons, that in undertaking the task he had assessed all of the information set out in the attachments (to the Department’s submission); in particular, he had considered the applicant’s representations and the documents he had submitted in support of his representations regarding why the cancellation decision should be revoked. At [12], the Minister referred to the applicant’s claims that he did not pose a risk to the Australian community, and that his removal would not lessen the risk of the commission of such offences against members of the Australian community.

38    The Statement of Reasons was structured under the following headings:

(a)    Best interests of minor children.

(b)    Expectations of the Australian community.

(c)    International treaties/conventions.

(d)    Strength, nature and duration of ties.

(e)    Extent of impediments if removed.

(f)    Protecting the Australian Community.

(g)    Conclusion.

39    In the section on “Strength, nature and duration of ties”, the Minister described in some detail the contribution the applicant has made to Australia and the support that he has received from his family. In particular, the applicant’s wife and adult children provided strong submissions in support of the applicant. The consequence of removing the applicant to New Zealand would be the applicant’s “physical separation from his wife of three decades, his adult children, his brothers and other family members”.

40    In the section on “Extent of Impediments if removed”, the Minister described parts of Dr Allnutt’s 22 April 2017 report, including that removal of the applicant from Australia “would act as a stressor” and lead to a deterioration in his mental state. The Minister found that removal of the applicant to New Zealand “will cause him significant emotional hardship which has the potential to adversely affect his diagnosed psychological and psychiatric conditions and his rehabilitation”.

41    In the section on “Protecting the Australian Community”, the Minister addressed the applicant’s criminal conduct, describing it as “very serious notwithstanding his medical and psychological conditions”, and the risk to the Australian community. The Minister described the reports of Dr Allnutt in some detail. At [118], the Minister stated:

While Dr Allnutt qualified his assessment, noting that any opinion on the risk of recidivism is of moderate accuracy, he believed that, overall, [the applicant] ‘falls into a group of sex offenders at the lower end of the risk spectrum for future sexual recidivism both for child pornography and hands on offending’. If [the applicant] pursues sex offender focussed psychological treatment, remains abstinent of substances and maintains his social supports and relationships with his wife, Dr Allnutt opined that ‘any risk [the applicant] might pose would be further mitigated’, noting that [the applicant’s] engagement in treatment ‘provides further confidence with his prospects for risk reduction’.

42    The Minister stated, at [122], that having regard to all the information before him, he considered the likelihood of the applicant reoffending to be “low”. The Minister then stated:

123.    It also was submitted by Mr Gros that removal of [the applicant]: ‘will not have the effect of reducing the risk to the Australian community from the commission of same or similar offences as the offending material subject of the charges may be readily downloaded or kept in a person’s possession as long as the applicant has access to internet’ and it ‘would not in any way diminish the risk of the applicant committing the same type of offences while in New Zealand’. Mr Lombard similarly submits that any risk of harm to the Australian community is not mitigated by [the applicant’s] geographical location, so it would not be mitigated by his removal as an individual can download child pornography regardless of his location.

124.    In April 2017, Dr Allnutt also considered this issue. He opined that removing [the applicant] to New Zealand ‘would not necessarily reduce risk that he might pose to children in an international sense’.

125.    I have taken these [submissions] into account, noting that [the applicant’s] representatives have acknowledged the ease with which [the applicant] could re-offend, in Australia or overseas.

126.    Given that [the applicant] was assessed by Dr Allnutt as at the lower end of the risk spectrum, not only for child pornography offences but also for ‘hands on offending’, I do not accept the submission that [the applicant’s] removal will not reduce the risk to the Australian community.

127.    I am mindful of the nature of the harm caused by the proliferation of child pornography, an offence which is not a victimless crime. Furthermore, I find that people who possess child pornography for their own use create a market for the exploitation of children. If [the applicant] were to re-offend by accessing and possessing child pornography in Australia, his actions may contribute to a market for the production of such material, including in Australia, with potentially grave physical and/or psychological consequences to the child victims.

43    The Minister then set out his conclusions. These included that, having found that the applicant posed a low likelihood of reoffending, the Minister could not rule out the possibility of further offending. The Minister also concluded that the applicant “represents an unacceptable risk of harm to the Australian community” and that “protection of the Australian community outweighed the best interests of minor members of his extended family … and other countervailing considerations”.

The application for judicial review

44    The applicant has applied to this Court for judicial review of the Decision. He relies on three grounds, which have been summarised at [8] above.

Sections 501(3A) and 501CA

45    Sections 501(3A) and 501CA have been discussed in a number of cases. I referred to and discussed some of these cases in Coker v Minister for Immigration and Border Protection [2017] FCA 929 at [42]-[44].

Grounds 1 and 2

46    It is convenient to consider grounds 1 and 2 together as there is some overlap between these grounds. Both of these grounds relate to the submission made on behalf of the applicant, first by Mr Gros and then later reiterated by GLC Migration, that, given the nature of the applicant’s offending, removing the applicant from Australia would not have the effect of reducing the risk to the Australian community from the commission of the same or similar offences. Indeed, it was submitted, any future risk to the Australian community would be mitigated by ensuring the applicant’s rehabilitation in Australia.

47    The applicant contends (by ground 1) that the Minister failed to respond to a clearly articulated argument in respect of the applicant’s future risk of reoffending: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24].

48    By ground 2, the applicant contends that the Minister did not give proper, genuine or realistic consideration to the issue of the applicant’s future risk of reoffending in relation to the protection of the Australian community in light of the evidence before him and the applicant’s submissions made to him, and thereby failed to carry out his statutory task: see BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [35]-[36] and [38].

49    The difficulty, as I see it, with both of these grounds is that the Minister was clearly aware of the submission made on behalf of the applicant to the effect that removal of the applicant from Australia would not have the effect of reducing the risk to the Australian community from the commission of the same or similar offences. At [11] of the Statement of Reasons, the Minister stated that he had considered the applicant’s representations. At [12], the Minister referred to the relevant claims on behalf of the applicant. Then, at [123]-[127], the Minister specifically referred to Mr Gros’s submission and responded to it. The Minister did not directly disagree with the proposition that removal of the applicant from Australia would not have the effect of reducing the risk to the Australian community from the commission of the same or similar offences; rather, the Minister responded to the submission by relying, at [126], on the risk that the applicant might engage in “hands on offending” (a matter which forms the basis of ground 3, discussed below). This is not a case where the decision-maker has not referred to a claim or material: here, the relevant submission was specifically referred to and discussed. The applicant submits that the Minister did not engage with the submission that was being made. I do not accept this submission. In my view, the Minister did engage with the submission, by providing the reasons set out in [123]-[126], in particular the reasons in [126]. Accordingly, I do not accept the submission that the Minister failed to respond to a clearly articulated argument, or that the Minister did not give proper, genuine or realistic consideration to an issue.

50    For these reasons, I reject grounds 1 and 2.

Ground 3

51    By this ground, the applicant contends that the Minister failed to notify the applicant of an issue in the review, or failed to draw his attention to a dispositive issue that was not obviously known, being that the Minister would consider the risk of the applicant sexually offending against children in a “hands on” way, rather than reoffending by possessing further child pornography. It is submitted that the Minister thereby denied the applicant procedural fairness: see Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [40]-[42].

52    The applicant relies on [126] of the Statement of Reasons. In that paragraph, the Minister relied on the risk of the applicant engaging in “hands on” sexual offending as the basis upon which to reject the submission that had been made on the applicant’s behalf that (given the internet-based nature of the offences) removing the applicant from Australia would not have the effect of reducing the risk to the Australian community from the commission of the same or similar offences. But there was no evidence that the applicant had ever engaged in “hands on” sexual offending and, in the circumstances, I consider that the applicant and his representatives were entitled to assume that the risk of harm to the Australian community was to be addressed by considering the risk of reoffending, that is, engaging in the same or similar conduct, rather than by considering the risk that the applicant might engage in offending of a different character, namely “hands on” sexual offending. The applicant was not put on notice that the Minister was going to consider and potentially rely on the risk that the applicant might engage in “hands on” sexual offending. In fairness to the applicant, notice needed to be given if this were to form the basis upon which to reject his submission regarding risk of harm to the Australian community.

53    Considering the Statement of Reasons as a whole, it is apparent that the reasons at [126] were very important to the Minister’s decision. The applicant’s representative had put forward a cogent argument that removal of the applicant from Australia would not have the effect of reducing the risk to the Australian community from the commission of the same or similar offences. The Minister’s principal reason for rejecting that argument was the risk that the applicant might engage in “hands on” sexual offending, as set out in [126]. The significance of [126] in the Minister’s process of reasoning was effectively accepted by counsel for the Minister in the course of the hearing. In the course of discussing the Minister’s process of reasoning in response to the submission that removing the applicant from Australia would not have the effect of reducing the risk to the Australian community, counsel said that what “tips the scales for the Minister is what appears in [126]”.

54    It is true that the material relied on by the Minister in [126] was contained in reports that had been filed by the applicant. However, the way in which the Minister relied on Dr Allnutt’s reports may involve a misunderstanding about what Dr Allnutt was actually saying. It does not appear that Dr Allnutt was expressing an opinion on the risk of the applicant offending by way of “hands on” sexual offending. Rather, it appears that Dr Allnutt was expressing a view that the applicant was at the lower end of the risk spectrum, and expressed this view by reference to a single group that related to both “child pornography and hands on offending”. Whether or not this is a correct understanding of what Dr Allnutt was saying does not need to be determined now. But this highlights the type of point that may well have been made had the applicant been given notice of the potential for a finding that he posed a risk of “hands on” sexual offending. (If it were necessary to decide whether the Minister misunderstood what Dr Allnutt was saying, I would conclude, for the reasons indicated, that he did misunderstand the reports.)

55    I note that in some places in the submissions provided on behalf of the applicant to the Minister the statement by Dr Allnutt regarding the applicant falling into a group of sex offenders at the lower end of the spectrum for sexual recidivism “both for child pornography and hands on offending” was reproduced. However, I do not take these statements as raising as an issue in the review (or recognising that it was an issue in the review) whether there was a risk of the applicant sexually offending against children in a “hands on” way. The statements were merely paraphrasing or quoting what Dr Allnutt had said in a context where the only type of offending committed by the applicant was accessing child pornography on the internet and possession of such material and there was no suggestion that he had engaged in “hands on” sexual offending. Further, I do not consider the terms of the relevant part of Direction 65 (section 13.1.2) to have put the applicant on notice that he needed to address the risk of “hands on” sexual offending against children, in circumstances where there was no suggestion that he had ever engaged in such conduct. Finally, at the hearing of the proceeding the Minister relied on a statement in Mr Gros’s email dated 16 May 2016 that “there is no suggestion of [the applicant] having propensity to commit other offences involving young children”. I do not take this sentence as indicating that the applicant’s representative recognised that an issue in the review was the risk of the applicant engaging in “hands on” offending. To the contrary, I take the sentence as indicating that this was not an issue in the review.

56    In the circumstances, I consider that there was a denial of procedural fairness in not giving the applicant notice of an issue in the review, namely the risk of the applicant sexually offending against children in a “hands on” way.

57    For these reasons, ground 3 is made out.

Conclusion

58    It follows from the above that the Decision is to be set aside and the Minister ordered to determine the request for revocation of the cancellation decision according to law. There is no apparent reason why costs should not follow the event. I also consider it appropriate to make orders for the costs to be fixed by way of a lump sum. I will provide a short period of time in case either party wishes to seek a variation of these costs orders.

Associate:

Dated:    26 October 2018